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IN RE O-J-O-, RESPONDENT
File A23 726 233-Los Angeles
Decided June 14, 1996
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Suspension of deportation was granted where the 24-year-old Nicaraguan respondent lived in the United States since the age of 13, was educated in this country, speaks English fluently, is fully assimilated into American life and culture, is involved in various activities in this country, runs a small trucking business, has no other means of obtaining lawful permanent resident status, and if deported, would return to a country where economic and political conditions were difficult.
Gloria M. Curiel, Esquire, Los Angeles, California, for respondent
Before: Board En Banc:
SCHMIDT, Chairman; HURWITZ, VILLAGELIU, MATHON, AND GUENDELSBERGER, Board Members. Concurring Opinions: DUNNE, Vice Chairman; HOLMES, Board Member; ROSENBERGER, Board Member. Dissenting Opinion: FILPPU, Board Member, joined by VACCA, HEILMAN, AND COLE, Board Members.
GUENDELSBERGER, Board Member:
The respondent, a native of Nicaragua, conceded deportability. In a decision rendered on April 19, 1995, the Immigration Judge denied the respondent's requests for asylum, withholding of deportation, and suspension of deportation, but granted voluntary departure. The respondent has appealed the denials of discretionary relief. We sustain the appeal as to the denial of the application for suspension of deportation.
I. FACTUAL BACKGROUND
The respondent is a 24-year-old native of Nicaragua who lived with his family in Esteli, Nicaragua, until his early teens. The respondent's father was a captain there in the fire department. After a prolonged conflict with local Sandinista officials, including imprisonment and forced resignation from his position, the respondent's father left Nicaragua for the United States, arriving in May 1985. The respondent joined his father in the United States in November 1985. His mother and younger brother arrived
The respondent attended school in the United States, where he successfully completed elementary school, junior high, and high school. He earned good grades, participated in school sporting events, and became fluent in speaking, reading, and writing English. He has held a number of jobs and has been active in his church and in community events. In particular, he is an avid fan of softball and baseball and participates as a player in local softball and baseball leagues. He is a deacon in his church, where he
not only attends regularly but also participates in the youth ministry program. He has plans to continue his studies at the college level and hopes eventually to become a police officer.
The respondent's father applied for asylum in the United States in 1987, and included the respondent in the application, but the claim was never adjudicated. In 1994, the respondent's father and mother returned to Nicaragua for an interview for an employment-based immigrant visa at the United States consulate. The respondent's father, seriously ill at the time, died before visa processing could be completed. His mother remained in Nicaragua after her husband's death and now resides there. The respondent's
brother has left the United States and is living in Guatemala.
The respondent's father had built up a business in the United States as an independent hauler. After his father's death in 1994, the respondent assumed responsibility for the family trucking business.
II. ISSUES ON APPEAL
In his Notice of Appeal (Form EOIR-26), the respondent claims that the Immigration Judge abused his discretion in denying his applications for relief from deportation. The respondent's brief raises factual and legal questions concerning his claims for asylum, withholding of deportation, and suspension of deportation. In view of our decision on the suspension of deportation issue, we find it unnecessary to reach the issues of asylum and withholding of deportation.
The Immigration Judge determined that the respondent met the 7-year continuous physical presence and good moral character requirements for suspension of deportation under section 244(a) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a) (1994). He found, however, that the respondent failed to demonstrate extreme hardship. The respondent contends that deportation to Nicaragua would cause him extreme hardship as that term is defined in
Matter of Anderson
, 16 I & N Dec. 596 (BIA 1978). We agree with the respondent that, when all of the hardship factors delineated in
Matter of Anderson
are taken into account, their cumulative effect amounts to extreme hardship under the facts presented in this case.
III. CRITERIA FOR EXTREME HARDSHIP
of the Act the respondent must demonstrate that his deportation "would result in extreme hardship to [himself] or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." Since the respondent in this case has no qualifying relative who is a citizen or a permanent resident of the United States, he must demonstrate extreme hardship to himself.
Matter of Anderson
, has been the starting point for many years in applying the extreme hardship requirement. Anderson involved a 55-year-old native of the Dominican Republic who had overstayed his nonimmigrant visa and resided in the United States for 8 years by the time of his deportation hearing. He claimed that the impoverished economy in his country of origin should be dispositive as to extreme hardship. The Board rejected such a broad approach to extreme hardship, holding that "it is only when other factors such as adva
nced 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 suspension of the deportation order."
In assessing hardship in Anderson, the Board found guidance concerning "other adverse factors" in a House Judiciary Committee report on the issue of "extreme hardship" in the context of a bill providing discretionary adjustment of status for certain aliens.
Matter of Anderson
, at 597. This report included the following factors:
1. family ties in the United States and abroad;
length of residence in the United States;
3. condition of health;
conditions in the country to which the alien is returnable
economic and political;
5. financial status -- business and occupation;
6. the possibility of other means of adjustment of status;
7. special assistance to the United States or community;
8. Immigration history;
9. position in the community.
This list was not meant to preclude consideration of aspects of hardship which do not fit squarely within one of these nine factors.
Although these factors provide a framework for analysis, the "elements required to establish extreme hardship are dependent upon the facts and circumstances peculiar to each case."
Matter of Ige
20 I & N Dec. 880
(BIA 1994). "Relevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists."
In each case, the trier of fact must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation, e.g., economic detriment due to loss of a job or efforts ordinarily required in relocating or adjusting to life in the native country. Such ordinary hardships, while not alone sufficient to constitute extreme hardship, are considered in the assessment of aggregate hards
IV. APPLICATION OF ANDERSON CRITERIA
The respondent entered the United States in November 1985 when he was 13 years old. He has lived here for over 10 years, including the critical formative years of adolescence.
During his stay in the United States, the respondent has assimilated into American life and culture. He successfully completed elementary school, junior high, and high school in the United States. He won an award for his excellent scholarship in junior high school. He has become fluent in written and spoken English. During his hearing before the immigration Judge he testified in English rather than Spanish.
Since he graduated from high school, he has held a number of jobs. From 1992 to 1994 he worked as a security guard. In 1994 he took over his father's trucking business and now works as an independent hauler. He hopes to continue his studies and then pursue a career as a police officer.
He is deeply involved in church activities, attending services regularly and serving as a voluntary deacon in his congregation. As a deacon he assists in various church activities, including cleaning the church, taking up collection, and working with young children. The president of the respondent's congregation provided a letter indicating that the respondent has taken preliminary theological classes and that his involvement in youth ministry includes counseling, campaign coordination, and evangelization
. The respondent is currently participating in continuing education courses towards full theological requirements for ordination to the ministry.
The respondent is a baseball enthusiast who attends many games each year. He also participates as a player on city league baseball and softball teams. The manager of his baseball team provided a letter praising the respondent as an athlete who has been of great value to the team and the community.
The respondent has close friends in the Los Angeles area, including his cousin, his brother's fiancee, and his own fiancee. The respondent testified that he is very close to his cousin whom he sees on nearly a daily basis. He has also established a close relationship with his brother's fiancee who testified that she has known the respondent for 6 years and that he treats her like a sister. Respondent testified to a close relationship of nearly 3 years with his fiancee who is in the United States awaiting a
djudication of her asylum claim.
The immigration Judge noted that the respondent could participate in church activities and become involved in community activities, such as baseball, in Nicaragua. The hardship related to community involvement, however, derives from the loss of the personal and social bonds established during the course of such activities. We consider not only the length of residence, but also the degree of integration into American society and the strength of attachments to friends and community.
Ordinarily, "the readjustment of an alien to life in his native country after having spent a number of years in the United States is not the type of hardship that is characterized as extreme, since similar hardship is suffered by most aliens who have spent time abroad."
Matter of Ige
, at 883. When an alien has strongly embraced and deeply immersed himself in the social and cultural life of the United States, however, the emotional and psychological impact of readjustment must be considered in assessing hardship.
Santana-Figueroa v. INS
, 644 F.2d 1354, 1357 (9th Cir .1981) (finding that extreme hardship could result from "the combined effect of depriving the petitioner of his livelihood and uprooting him from a community to which he had belonged and contributed for more than a decade.")
The Supreme Court has noted that "deportation may result in the loss 'of all that makes life worth living.' "
Bridges v. Wixon
, 326 U.S. 135, 147 (1945) (quoting
Ng Fung Ho v. White
, 259 U.S. 276, 284 (1922)). In this case, the respondent has developed such strong ties that deportation to Nicaragua would result in significant hardship on a social and psychological level. We find that deportation in this case would cause significant hardship over and above the normal disruption of social and community ties involved in deportation.
Additional hardship factors in this case relate to the depressed economic conditions and volatile political situation throughout Nicaragua. Although somewhat speculative, these factors do provide some additional weight in the assessment of aggregate hardship.
Tukhowinich v. INS
, 64 F.3d 460, 463 (9th Cir.1995) (holding that political unrest in the country of origin should be considered in assessing hardship).
While economic detriment alone is not enough to constitute extreme hardship, it "is still a factor to consider in determining eligibility for suspension of deportation."
Mejia-Carrillo v. United States INS
, 656 F.2d 520, 522 (9th Cir.1981). In this case, the respondent helped his father to develop and operate an independent trucking business which he continued to manage after his father's death. The respondent's recent tax returns indicate that he has had an income of about $13,000 per year from this trucking business. He testified that were he to return to Nicaragua he could not establish the same kind of business in his home country because of difficult economic and political conditions. His loss of incom
e as well as the business good will he and his father built up over the years are hardships which should be considered.
The Department of State's January 1995 Country Profile for Nicaragua, made part of the record of proceedings below, indicates that "[u]nemployment and underemployment total about 50 percent." Bureau of Democracy, Human Rights, and Labor, U.S. Dep't of State,
Nicaragua-Profile of Asylum Claims & Country Conditions
4 (Jan. 1995) [hereinafter
]. The economy continues to stagnate with annual per capita income "less than one-third of what it was in the mid-1970s."
"Nicaragua's political problems continue to hamper economic growth and investors remain wary."
In regard to political conditions, the respondent provided testimony and newspaper reports concerning recent Sandinista-related security problems in Nicaragua. The Profile reports that "Sandinistas maintain important positions in the military, police, bureaucracy, judiciary and unions. They have followers throughout the population and are in a position to punish and harm their perceived enemies if they have sufficient motive to do so. Furthermore, the Sandinistas can carry out such acts with virtually assur
ed impunity because of their positions within the public safety/security organizations, their influence upon the government and the government's repeated grants of amnesty for past misdeeds."
, at 5. In light of the respondent's family's history of conflict with the Sandinistas, the current political situation in Nicaragua should be factored into the hardship assessment.
Family unity considerations do not add measurably to the hardship aspects of this case. As indicated above, the respondent is unmarried and has no children. His mother resides in Nicaragua. His brother in Guatemala hopes to return to the United States to marry a permanent resident with a pending naturalization application. The respondent also testified that he has a close relationship with his cousin living nearby and that he has a number of cousins in New York with whom he keeps in touch. The respondent's
fiancee is an undocumented alien with a pending asylum claim. The expectation that a brother may obtain permanent resident status and the hope that his undocumented fiancee will be granted asylum, while relevant, add little to the overall assessment of hardship in this case.
That the respondent has relatively weak family ties in the United States does not preclude him from demonstrating extreme hardship under other factors in
Matter of Anderson
Tukhowinich v. INS
, for example, the respondent had never been married and had no children. She had worked in the garment industry in the United States for over 10 years to support her retired parents and five sisters residing in Thailand and three sisters in undocumented status in the United States. The respondent had devoted her life to providing for her family. Although similar work was available in Thailand, she could not have supported her family with the wages she would earn there. The United States Court of Appeals fo
r the Ninth Circuit concluded that "[b]ecause the loss of financially comparable employment would create not only an economic hardship for Ms. Tukhowinich but would severely frustrate what she regards as the overriding mission in her life-to provide for her parents and siblings-we think the BIA should have considered the implications of her economic loss."
Hardship is diminished to the extent that alternate means of obtaining lawful permanent residence may be available. In this case, asylum and withholding of deportation having been denied, the respondent has no present means of obtaining lawful permanent residence.
There is nothing in the respondent's immigration history which would detract from any of the aspects of his hardship claim. He entered the United States when he was 13 years old and has not left since that time. He has worked with authorization of the Immigration and Naturalization Service and has paid taxes during all of his years of work.