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Interim Decision #3280 (Part 3)
Lauri Steven Filppu, Board Member; in which Fred W. Vacca; Michael J. Heilman; and Patricia A. Cole, Board Members, joined
I respectfully dissent.
The majority couches its ruling as a simple application of
Matter of Anderson
, 16 I & N Dec. 596 (BIA 1978), to an alien who would experience "extreme hardship" were he to return permanently to Nicaragua. The majority concludes that this is a "close case" which satisfies the "extreme hardship" test because it "meets the requirement of significant hardships over and above the normal economic and social disruptions involved in deportation." It is, however, only through a generous application of the term "extreme" that the respondent's level of hardship today qualifies him for relief.
I. THE MEANING OF "EXTREME HARDSHIP"
The majority properly starts with the factors set forth in
Matter of Anderson
, for assessing extreme hardship claims. But Anderson only sets forth factors for examination. It does little in the way of providing content to the ambiguous phrase "extreme hardship."
of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1) (1994), does give latitude to the Board, as the Attorney General's delegate, in setting the parameters of extreme hardship. It specifically provides that the hardship must be extreme "in the opinion of the Attorney General."
Nevertheless, we are an administrative tribunal and we ought to strive for a faithful application of this statutory test.
In doing so, meaning must first be given to the actual language selected by Congress, including the word "extreme." The ordinary meaning of the word "extreme" can perhaps best be determined by considering the range of other adjectives that could have been used. Congress could have chosen the adjectives "some," "meaningful," "significant," "considerable," or "substantial," but it did not. Instead, it chose a stronger word than all of these, the adjective "extreme," which by common definition means "existing
in a very high degree," "most advanced," or "very pronounced or excessive."
Webster's New Collegiate Dictionary
407 (1977). Congress used this strong word, and we must properly apply it.
The appropriateness of a literal or narrow construction is confirmed by the legislative history. Congress in 1952 intended to correct serious abuses it saw arising under the more generous terms of the predecessor suspension of deportation provisions.
S. Rep. No. 1137, 82d Cong., 2d Sess. 25 (1952); H.R. Rep. No. 1365, 82d Cong., 2d Sess. 62-63 (1952),
1952 U.S.C.C.A.N. 1653, 1718; S. Rep. No. 1515, 81st Cong., 2d Sess. 595-600, 609- 11 (1950). In 1962, Congress further amended the statute to incorporate the current "extreme hardship" test. It thereby lessened the degree of hardship needed to qualify for relief in comparison to the original test of "exceptional and extremely unusual hardship."
Matter of Hwang
, 10 I & N Dec. 448, 452 (BIA 1964). The 1952 legislative history suggests that the qualifying hardship originally needed to reach the level of making deportation "unconscionable." S. Rep. 1137 at 25. The revision in 1962 receded from this level of severity. But the use of the word "extreme," especially when contrasted with other possible adjectives, is still consistent with the basic goal of the 1952 legislation, including markedly reducing the availability of relief for aliens who manage to remain here
for a number of years or who acquire ordinary ties to United States citizens.
The earliest published administrative cases under the 1952 Act and the 1962 amendment that gave us the "extreme hardship" test reflect the normal uncertainty that can arise in giving concrete meaning to imprecise statutory language at the outset. They show that the Board usually granted suspension in strong cases, while it rejected claims in less than compelling cases. There are some early decisions that seem generous in the light of how the Board has applied the "extreme hardship" test over the last 20 to
25 years, starting shortly before
Matter of Anderson
. Nevertheless, these initial cases show the importance of lengthy residence in, and very close family ties to the United States, as well as the countervailing significance arising from other means for adjusting an alien's status.
Matter of Wong
, 12 I & N Dec. 721 (BIA 1968);
Matter of Uy
, 11 I & N Dec. 159 (BIA 1965);
Matter of McCarthy
, 10 I & N Dec. 227 (BIA 1963);
Matter of P-
, 5 I & N Dec. 421 (BIA 1953).
The Board's movement toward a narrow view of extreme hardship is partially reflected in the cases described in the concurring opinion of Board Member Holmes. For example, the factual description in relation to the 1974 denial of relief in
Matter of Kim
, 15 I & N Dec. 88 (BIA 1974), reflects a stronger claim than is described in relation to the 1963 grant of relief in
Matter of Chien
, 10 I & N Dec. 387 (BIA 1963).
The Board's past narrow interpretation of "extreme hardship" has been upheld by the Supreme Court.
INS v. Rios-Pineda
, 471 U.S. 444 (1985);
INS v. Jong Ha Wang
, 450 U.S. 139 (1981). Congress, moreover, has taken no steps to change this interpretation, in contrast to its action in the wake of the Supreme Court's interpretation of the "continuous physical presence" requirement for suspension.
INS v. Phinpathya
, 464 U.S. 183 (1984);
section 315(b) of Immigration Reform and Control Act of 1986, Pub. L. No.
, 100 Stat. 3359, 3439 ("IRCA"),
sec. 2(q)(1) of the Immigration Technical Corrections Amendments of 1988, Pub. L. No. 100-525, 102 Stat. 2609, 2613-14. The Supreme Court's ruling in
INS v. Jong Ha Wang
does not dictate our construction of the statute. But this 1981 decision was in existence at the time Congress amended the suspension of deportation statute in response to the Court's 1984 Phinpathya ruling. That amendment did not touch the extreme hardship requirement.
Indeed, the respondent here does not even seem to have quite the degree of hardship reflected in the most generous Board cases from earlier years with parallel fact patterns. These cases also involved aliens who arrived during their teen-age years. While the aliens were a little older than the respondent upon their entries, they all had been in the United States about twice the minimum 7 years required by the statute. These aliens also had significant service in our Armed Forces, a factor of focus in those
cases, which may have affected the dispositions.
Matter of Gee
, 11 I & N Dec. 639 (BIA 1966);
Matter of Lum
, 11 I & N Dec. 295 (BIA 1965);
Matter of Woo
, 10 I & N Dec. 347 (BIA 1963);
Matter of Huey
, 13 I & N Dec. 5 (BIA 1968) (Congress did not approve suspension grant to alien who appears, at time of rejection, to have resided in U.S. for 13 years starting at age 16, and whose deportation likely would have been to a country, Taiwan, he had never even visited).
It should also be apparent to close observers that the Board
consistently construed the phrase "extreme hardship" more narrowly over the last two decades than it did in the first decade after the 1962 adoption of the "extreme hardship" test.
Cortes-Castillo v. INS
, 997 F.2d 1199, 1204 (7th Cir.1993) (observing that the "exceptional and extremely unusual" hardship test has also become more stringent over the past 40 years). It is this now longstanding, narrow construction that was upheld by the Supreme Court.
Congress deliberately used
language in requiring "extreme hardship." In view of the history behind the adoption of this test, the Supreme Court case law, and the administrative practice over the last 20 or more years, I see no justification for us to apply anything other than a plain meaning or narrow approach to the concept of extreme hardship.
This does not mean that relief is only available when the level of hardship becomes unbearable, or that we must be guided only by the harshest interpretations seen in past years. But we ought to be able reasonably to describe serious detriment before we can fairly characterize a set of circumstances as involving "extreme hardship." Within this overall frame of reference, I find the majority's explanation unpersuasive.
II. THE FACTS
The respondent presents a rather unremarkable claim of hardship. He arrived here 10 years ago in November of 1985, and he turned 14 the month after his arrival. His father preceded him by several months, and his mother and brother arrived within the same year. He went to school in California and has acquired fairly typical connections to both his local community and the nation as a whole.
Indeed, in many respects his ties at the time of the hearing were less than is often seen by aliens whose entire immediate family came here 10 years ago. His father passed away in 1994, his mother has returned to Nicaragua, and his brother was in Guatemala. He also has aunts and uncles in Nicaragua, as well as a step-sister he met only once. The "family unity considerations" found "relevant" by the majority pertain in part to the respondent's illegal alien fiancee, a permanent resident cousin in California
, and the brother in Guatemala, whose bride-to-be was a permanent resident and had applied for citizenship about a month before the hearing.
The respondent's fiancee attended the hearing, but she did not testify. She is an asylum applicant, but we know very little about the nature of her claim or her presence here. The respondent did indicate that the only way for him to immigrate at this time was through any relief available in deportation proceedings. The respondent is also close to his California cousin, and he relies on telephone calls to his New York cousins if he needs help or to talk to someone.
There seems to be little doubt that the respondent has integrated himself into American society. While he has an expunged disorderly conduct violation, he plays baseball and softball, enjoys working out at the gym, helps at church, and has donated blood to the Red Cross and clothing to the Salvation Army. A return to Nicaragua does not appeal to him. The political and economic climate are far from ideal. In addition, the respondent indicated that his family departed in 1985 under stressful circumstances, wi
th his father having been detained for 3 months evidently because of problems with Sandinista officials. Although the respondent was never threatened in Nicaragua, he was concerned about being pressed into military service because he was almost 14.
The respondent graduated from high school in Los Angeles in June of 1991, and he took several occupational courses until December of 1991. These allowed him to be employed as a security guard from 1992 until nearly 1994. It appears that he began driving his father's truck when his father returned to Nicaragua. The respondent wants to attend college in the United States because one of his dreams is to become a police officer.
III. THE MAJORITY's HARDSHIP RULING
The majority finds that the respondent's deportation to Nicaragua would cause him to suffer "significant" social and psychological hardship, apparently arising from the fact that he has "deeply immersed himself in the social and cultural life of the United States." It finds some additional hardship stemming from the political and economic conditions in Nicaragua, although it characterizes these potential hardships as "somewhat speculative." It also finds that "[f]amily unity considerations" are "relevant,"
but "do not add measurably to the hardship aspects of this case."
A. Social and Psychological Hardship
The majority has determined that the respondent is "fully assimilated into American culture and society." He has lived here over 10 years, including some formative adolescent years. He did well in school and is fluent in English. He has worked here, and inherited his father's truck. He is deeply involved in church activities. He is a good athlete and is active in baseball and softball. He is also close to a cousin in Los Angeles and to his brother's fiancee.
I agree that these factors are of consequence. But the majority overstates the case in finding "significant hardship over and above the normal disruption of social and community ties" that would arise from the respondent's deportation.
Historically, the Board has treated family and length of residence as being generally of the greatest importance in suspension cases. Except in rare cases, community ties are of markedly less importance, and for good reason. Church and recreational affiliations are routinely changed by persons as they move for any number of reasons, such as employment, schooling, marital and family choices, and health reasons. It is not that these ties do not matter; it is that they very typically matter less than other con
siderations, so much so that for most persons the important decisions in life are only marginally swayed by community ties.
I doubt it would surprise anyone if the respondent left his friends, church, and adult sports teams in the Los Angeles area to go to college or take a position as a police officer in a distant city, should he realize his dream. Of course, he could be expected to find new friends, actively attend a new church, and join new teams. What is surprising is that these very ordinary community ties form the bulwark of the majority's position, as it finds that the speculative political and economic considerations ad
d only "some additional weight," and the family unity considerations "do not add measurably" to the hardship.
The respondent did spend some formative years in the United States. He also spent some formative years in Nicaragua, and the majority makes no claim that he is a stranger to Nicaraguan society or culture. He was nearly 14 when he arrived here. His family came at about the same time, and he thus continued to be raised in a family with a Nicaraguan heritage at the same time that both he and other members of his family were adjusting to life here. He is as proficient in written and spoken Spanish as he is in E
nglish. The fact that he is "fully assimilated into American culture and society" does not mean that he would have any difficulty quickly assimilating once again into Nicaraguan culture and society. Indeed, given the presence of his mother and other extended family members in Nicaragua, he would very likely adjust to life there nearly as rapidly as he would in a move to another American city.
B. Economic and Political Considerations
The majority states that the "respondent helped his father to develop and operate an independent trucking business which he continued to manage after his father's death." It also credits the respondent's testimony that he could not establish a similar business in Nicaragua.
The respondent does own a truck, but he does not employ anyone else. Nor does he own any additional property, aside from his personal belongings and his car. It appears either that he drives for another business as an independent contractor, or that he obtains independent trucking assignments through some sort of brokerage or dispatching company. The $13,000 income noted by the majority was the respondent's gross income in 1994. After insurance, maintenance, and other expenses, his net income was $5,310.00.
The record does indicate that the respondent inherited his father's truck, and that driving this truck is what the respondent did for a living at the time of the hearing. The record does not show that he helped to "develop" this business, and it is not clear what he must do to "manage" it now, aside from driving and maintaining the truck. The Immigration Judge was correct in according this "business" no special weight. From the record, it appears to be little more than ordinary employment in the United Stat
es. Every indication suggests that a sale of the truck, by itself, would completely liquidate the "business."
Owning and driving a truck is an honest way to make a living, and it is likely that a return to Nicaragua will entail some financial hardship. But in this respect the respondent faces no more than the loss of what amounts to a job that earned him a little over $5,000, which was $2,000
the poverty guideline for a family of one in 1994. 59 Fed. Reg.
(1994). It is understandable why the respondent testified that he wants to become a police officer.
With respect to political problems, the respondent testified that he was never threatened in Nicaragua, but that he was facing possible military conscription as he was approaching age 14 when he left. The State Department report included in the record and relied on by the majority discloses that the military draft has been abolished in Nicaragua and that "there have been no reports of . . . Sandinista mistreatment of those who avoided . . . military service." Bureau of Democracy, Human Rights, and Labor, U.
S. Dep't of State,
Nicaragua-Profile of Asylum Claims & Country Conditions
(Jan. 1995). There has been no showing that the problems experienced by the father have affected the mother since her return or would affect this respondent should he return. The majority states, but fails to explain why "the current political situation in Nicaragua should be factored into the hardship assessment." It is also not evident from the majority's opinion exactly how it has factored this element into the analysis, if at all.
C. Family Unity Considerations
The majority finds that the respondent has "relatively weak family ties in the United States" and declares that "while relevant, [they] add little to the overall assessment of hardship." It is unclear why the majority assigns any weight to the family ties factor, except as to the California cousin who is lawfully present here and is properly given weight as a friend elsewhere by the majority. The majority gives some minimal, but relevant weight to the respondent's ties to his fiancee and to his brother in
Guatemala who at the time of the hearing planned to return to his own fiancee. These persons, however, enjoyed no lawful immigration status, and one of the two was not even in the United States at the time of the hearing. The immigration judge did not accord any weight to the respondent's separation from either the brother in Guatemala or the fiancee asylum applicant.
While there seems to be a paucity of published cases on point, I have not found a case in which the Board previously accorded hardship weight to an alien's separation from other unlawful residents or intending unlawful residents of the United States. The issue, however, has been addressed in the suspension of deportation context in unpublished Board orders. The decision of the United States Court of Appeals for the Ninth Circuit in
Alvarez-Madrigal v. INS
, 808 F.2d 705 (9th Cir.1987), quotes from one such order and upholds the Board's refusal to accord hardship weight to separation from illegal alien relatives. There, the Board stated:
We will not assume that his family members will remain here indefinitely in an illegal status, although that might be their intention. It may well be that if the respondent is allowed to remain in the United States, he will be separated from his family members who cannot remain here. Also, it would be contrary to the policy of the immigration laws to allow an alien to obtain an advantage through the presence of relatives illegally in the United States.
at 707. As this passage indicates, the absence of lawful status for a friend or relative greatly complicates any assessment of potential hardship from separation. The friend or relative may not ultimately be permitted to remain here, causing separation hardship if the alien suspension applicant stays behind while the friend or relative is deported. There is the potential for "bootstrapping" claims upon each other, as well as the policy concerns noted by the Board, as quoted in
According hardship weight to separation from persons unlawfully in the United States, or intending an unlawful presence here, is an unwise and unexplained departure from past practice.
The majority is not convincing in its claim that the respondent has demonstrated "significant hardships over and above the normal economic and social disruptions involved in deportation." It finds "extreme hardship" arising from rather ordinary community ties, assimilation into American culture, and unnoteworthy economic hardship. While not inconsequential, this overall level of hardship is not "extreme" under a plain meaning test, which even by dictionary definition would require a showing that the hardshi
p exists in a very high degree, is most advanced, or is very pronounced or excessive.
This does not mean that the ambiguous phrase "extreme hardship" is unbending or only applies where the consequences are draconian. But the Board long ago resolved the ambiguity in the statutory language in favor of a narrow construction that mandated strong showings of hardship to obtain relief. That resolution has been followed for several decades, and has been approved by the courts. While not a generous view, it is consistent with the literal language of the statute and with the concerns leading to thi
s statutory restriction on suspension of deportation. The respondent's level of hardship cannot properly be deemed "extreme."
CONSENTING OPINION: David B. Holmes, Board Member
The published Board decisions involving motions to reopen proceedings to apply for suspension of deportation which in part address the term "extreme hardship" include
20 I & N Dec. 880
(BIA 1994) (which includes a comprehensive discussion of the requirements for suspension of deportation);
Matter of Correa
19 I & N Dec. 130
(BIA 1984) (holding that equities acquired after a final order of deportation are entitled to less weight);
Matter of Reyes
, 18 I & N Dec. 249 (BIA 1982);
Matter of Sipus
, 14 I & N Dec. 229 (BIA 1972);
Matter of Lam
, 14 I & N Dec. 98 (BIA 1972); and
, & N Dec. 649 (BIA 1966). I find no significant inconsistencies in these decisions and those discussed above.
Matter of Pena-Dia
20 I & N Dec. 841
(BIA 1994) (granting a motion to reopen proceedings to apply for suspension of deportation under the more rigorous requirements of section
of the Act);
Matter of Wong
, 12 I & N sec. 721 (BIA 1968) (granting suspension of deportation under section
of the Act).
The dissent references the fact that each of these respondents had service in the United States military. But, there was no significant discussion of this fact in these three cases in the context of the "extreme hardship" requirement. Rather, since these respondents had interruptions in their presence in this country, the discussions of military service related to their eligibility for relief under section
of the Act. That section absolved them from meeting the continuous physical presence requirement of section
so long as they "served for a minimum period of twenty-four months in an active-duty status in the Armed Forces of the United States" and were separated "under honorable conditions."
Prior decisions do exist in which extreme hardship, and even exceptional and extremely unusual hardship, is found to be established. Compare, e.g.,
Matter of Lum
, 11 I & N Dec. 295 (BIA 1965) (adult with 13-year residence combined with loss of income from part ownership of restaurant) and
Matter of Louie
, 10 I & N Dec. 223 (BIA 1963) (adult having family abroad, with 11-year residence and an elderly, dependent father) with
Matter of W-
, 5 I & N Dec. 586 (BIA 1953) (higher standard satisfied by married female with residence of 9 years, five dependent children, and few assets to allow expense of travel abroad to obtain visa) and
Matter of S-
, 5 I & N Dec. 409 (BIA 1953) (higher standard satisfied by 27-year residence, limited savings, and prospect of severe financial hardship if forced to travel abroad for a visa).
The dissent contends that the factual accuracy of the trend in recent Board decisions is beyond dispute. However, the precedential value of prior Board decisions may be diminished in the event they rely on broad and arguably unwarranted extrapolations drawn from individual, fact-based findings. For example,
Matter of Kim
, often cited for the principle that the forced departure of United States citizen children does not constitute extreme hardship, was decided more on an evidentiary basis than on the merits of the weight to be given hardship claims involving children. There, the Board found only that allegations of diminished educational and economic opportunity, and I emphasize that they were only unproven allegations, were insufficient to establish extreme
In a related context, the standard of "exceptional hardship," which is capable of meaning both greater than and different from ordinary hardship, is used to determine eligibility for obtaining one of the four statutory waivers of the foreign residence requirement applicable to many exchange visitors. Section
of the Act, 8 U.S.C. § 1182(e) (1994). While such waivers ostensibly are outside the jurisdiction of the Board, a number of precedent decisions rendered by the Immigration and Naturalization Service find it to encompass, without regard to whether it is unique, circumstances of professional career interruption, poor nutrition and lesser education for children, and family separation.
Matter of Iberra
, 13 I & N Dec. 277 (R.C. 1968);
Matter of Habib
, 11 I & N Dec. 464 (D.D.1965). It is not unreasonable for us to give those precedent decisions some weight in the course of our independent interpretation of hardship standards in the suspension context.
Scholars, litigators, and courts alike have recognized the confusion worked by attempting to construe judicial decisions concerning extreme hardship when such adjudications are coupled with motions to reopen which independently impose a "prima facie showing" standard, as well as require the exercise of discretion.
, Aleinikoff, Martin and Motomura,
Immigration Law and Policy
, 653, 666; Note,
Developments in the Law-Immigration Policy and the Rights of Aliens
, 96 Harv. L. Rev. 1286, 1396 (1983);
Ravancho v. INS
, 658 F.2d 169 (3d Cir.1981).
For approximately 30 years, administrative grants of suspension of deportation were subject to congressional review and disapproval. This finally ended when the Supreme Court declared the "one House veto" provisions of former section
of the Act, 8 U.S.C. § 1254(c) (1982), unconstitutional.
INS v. Chadha
, 462 U.S. 919 (1983).
Neither the majority nor any of the concurring opinions dispute the factual accuracy of the observation about Board practice in construing extreme hardship over the last two decades. The lack of Board precedent to support this assertion, noted in Board Member Holmes' concurrence, evidently arises from the very fact he earlier points out: "[I]n recent years the Board has provided little published guidance . . . address[ing] the 'extreme hardship' requirement
. . . ."