Dong Hyung Lee v. Immigration & Naturalization Service
550 F.2d 554
9th Cir.
1977
Check Treatment

*2 (9th 1969), denied, 908, cert. 397 U.S. GOODWIN, Before BARNES and Circuit (1970); S.Ct. L.Ed.2d 89 Loza-Bedo TAKASUGI,* Judges, Judge. District ya and Naturalization Ser

vice, also, Fung Siu Luk v. Rosenberg, 409 F.2d Cir.), dismissed, GOODWIN, cert. Judge: 396 U.S. Circuit 2151, 24 (1969). L.Ed.2d 58 Dong Hyung appeals Lee an order of Immigration Appeals de- alien illegally present An nied relief from a order. gain United States cannot a favored status Lee, Korea, merely by entered the Unit- the birth native of his citizen child. v. Immigration ed in 1965 visitor. follow- Gonzalez-Cuevas and Natu- Judge Takasugi, District * The Honorable Robert M. for the Central District of California, sitting by designation. migration policy, and would provide a blue- ralization any print inconvenience like-minded alien to possibility enter the country as visitor and stay is not a indefinitely. citizen child a result Such would statutory also be an by the lan- affront contemplated degree overseas those aliens who abiding are v. Ma- hardship. Mendez of extreme guage waiting the law and *3 patience whatever 1965). In view of (8th Cir. F.2d 128 340 jor, they can muster for opportunity an to enter can en- which aliens ease with the relative permanent legally as resident. We find or visitors and students country as this ter no abuse of discretion. departure long enough to delay their then children, proposition the citizen produce The of order the Board is affirmed. virtually do petitioner would urged TAKASUGI, by Con- imposed Judge, the limitations District away dissenting: upon immigration. gress respectfully I dissent. Here, alien the mother was seeks Petitioner review of an order of the some into the as a student

brought Appeals (herein his impend Lee knew of years after three “Board”) denying his motion to reopen de- appear does to be deportation. This not ing portation proceedings. Said motion was fact situation that should cause of the kind specific filed for the purpose of securing an to exercise its dis Immigration Service adjustment the of permanent his status for res- the manner demanded the cretion 1254(a)(1).1 idence under U.S.C. § requires much one that us to less petitioner, pertinent provisions of section an abuse of discretion. the action as treat 1254(a)(1) deal with the issue of whether substantially improved by deportation case is not of petitioner the would result in him, Financial claim of economic extreme to the to his wife or to child, with extreme hard- synonymous not his a citizen of the loss is United States. Blanco-Dominquez Immigra- The Board petitioner’s determined that Service, 528 F.2d Naturalization tion and proceedings solely rested 1975); Nishikage v. Immi- upon the facts that he has met the seven Service, 443 and Naturalization gration years physical presence requirement and is 1971); Llacer the father of a United States Citizen. tion and disadvantage Economic Standard for Review consistently rejected by this court has been deciding any cases under 8 U.S.C. of compel finding to extreme a basis 1254(a)(1), the required Board is § to make hardship. Fong Yu v. Choi separate two and distinct determinations. F.2d 719 Initially, eligibili- it must decide petitioner’s (9th Cir. ty under the criteria 1254(a)(1). Once Virtually acquisitions prop- Lee’s all of affirmative, the decided in the Board is investment in his business enter- and erty then called to exercise its discretion as occurred after he was under valid prise to whether such petitioner is entitled To reward him now deportation Rosenfield, 8.14, orders. relief. and pp. Gordon industry elevate above im- The Supreme thrift 8-94 and 95. would Court noted in alia, provides, years inter as follows: 1. Section not less than seven . . . proves during Attorney may, period “(a) all of such he was . . General discretion, suspend deportation character; person and ad- his and a lawfully just to that of an alien person deportation would, the status is a whose in the residence, permanent for Attorney General, admitted case opinion of the result in applies Attorney of an alien who hardship to the alien extreme suspension General spouse, parent, or who is a citizen of and— lawfully the United States or an alien admit- present “(1) physically been . has residence; ted period for a continuous 29, 1971, checking bottles. June On Naturalization Ser- Foti spouse entered the United 11 L.Ed.2d stu- vice, year, purchased In that he dent. first wig stores. One such store of two inquiry special case the instant “In in a fire and other damaged burned petitioner found that only officer rioting in during Angeles. East Los requirements eligibility meet the failed Thereafter, petitioner employment obtained since no deportation, at a retail clerk “7-11” Store deporta- from his result hardship would per month. $800.00 that, even had tion, indicated further but met, again sought adjustment been relief In 1972 of his hardship requirement hearing A was held and status. as a discretion- been denied would deportable to be was found special inquiry offi- ary matter. Since Petitioner appealed ordered. to the to sus- his discretion exercise cer cannot *4 Immigration Appeals. appeal the alien until he finds deportation pend by the was denied Board. a find- eligible suspension, for statutorily (or an exercise of eligibility and ing of 1973, a child was August, In born to exercise) may prop- discretion to refusal spouse. and his This petitioner birth oc- sepa- as distinct and considered erly be original after the deportation curred order. 228-229, 15, at n. 375 U.S. matters.” rate Ultimately, petitioner purchased a “7-11” 313-314, 11 L.Ed.2d at 290. at Montebello, in California. Between Store reopen, many to reviewing motions 1974, In February September, and petitioner appellate the court is held that earnings $3,000 averaged monthly cases of some determining whether the Board to earnings $215,000 limited gross and had of some for Santiago its discretion. year. abused that and tion 1974, September, petitioner applied In for 489, 1975); Loza-Bedoya 488, n. 3 deportation suspension a under Section Service, Immigration 244(a)(1) Act, Immigration Nationality and This 1254(a)(1), sought reopen 8 U.S.C. and to § ultimate for the Board’s is correct standard grounds on the deportation proceedings his However, the stan- discretionary decision. lived in this for over he had seven eligi- issue of reviewing the initial dard character, was of was the years, substantial evidence appears to be the bility child, father American-born was a Foti, 1105a(4)) (8 as noted test his own business and that proprietor of at S.Ct. supra, 375 would create extreme March, family. petitioner’s his In Facts reopen deportation proceedings motion to on the basis that native of Ko- denied petitioner, a May, In a prima did not establish facie case. In rea, to the United States was admitted 1975, another April, de- musician under Sec. professional respondent. was filed with portation In and Na- 101(a)(15)(H)(i) of 1976, said motion was denied. In May, Act, 1101(a)(15)(H)(i). tionality 8 U.S.C. § June, 1975, petitioner filed the peti- instant resi- application 1966 his In for review to this court under tion Section he was was denied. In 1969 status dent Nationality and deportation hearing summoned Act, reopen proceedings. 1105a to 8 U.S.C. § longer permitted. than having remained appear. year failed to For Petitioner Discussion entry played months after his eight troupe performed Yong various Naturaliza- musical In Next, employed as a he was sundry jobs. tion Washington denying peti- reversed an order University of the court at

teacher worker, application depor- stacking and tioner’s glass then 1254 on the factor pursuant consider, to 8 U.S.C. tation I strongly disagree. Sec- by the in- that the determination grounds expressly provides that con- petition bases for the officer of the quiry sideration of extreme hardship should be had in error. The officer determined applied “. to the alien or to his petitioner’s hardship the sole basis of spouse, parent who is a citizen of in fact economic when said United States (Emphasis add- as an alleged spousal separation additional ed). The American citizen child has an factor of right absolute to remain in this country. right, This because age, tender can- case, the In the Board made a instant not be exercised meaningfully without al- the sole basis determination that for this lowing parents to remain here as well. that he had met petitioner’s motion was essence, In Board’s decision thrusts an presence years physical requirement seven extremely difficult choice the child’s United and is the father of a States citizen. parents if expected record, However, choice it becomes obvi- —a between the child’s potential was based on appeal ous that substan- general health and material welfare tially more. Additional issues were presented parental relative severe and the reper- financial sustenance cussions, guidance family separations and the diffi- he would receive from his essence, culty obtaining parents visas. Korea. determined bases the Board did not con- In U. S. ex rel. Partheniades v. Shaugh petitioner.

form to the claimed basis of nessy, 146 F.Supp. 772 (S.D.N.Y.1956), a *5 viewing majority opinion, ap- it refusal of the Board consider the superi- reading pears only that the which would be quality of education available in the compatible Yong is to recognize compared United States as to those offered considering Board’s error in not the entire schools, in coupled Greek with the other by bases raised in this case but factors, were sufficient to deporta forestall finding that the omission of the other bases tion of the parents. child’s The Board was insignificant was harmless or under section Yong, also reversed supra, in where the 1254(a)(1). illegal alien wife from her husband, lawfully States, United was minority that the ruling feels Board’s imminent. The separation parents of denying petitioner’s their child as in the case at bar is no less supported by was not “substantial evi- painful or inconsequential. also, See Acos dence”, at the “totality least under of the Landon, ta v. 125 F.Supp. (S.D.Cal. 434 theory, circumstances” if not under the sin- gle approach majori- criteria utilized ty- Hardship Economic and Availability A review of each claimed basis followed Visa of “totality a discussion of of the the cir- Prior to the 1962 Amendment helpful. cumstances” will be 1254(a)(1), the standard for granting a discretionary stay

Parentage Family was “. Separation exceptional extremely unusual hard- Concededly, ample there are cases in oth- ” guide Under the Dis- er circuits which state that an alien illegally trict of Columbia Circuit in Asikese v. present in the gain United States cannot Brownell, 97 U.S.App.D.C. 230 F.2d 34 merely favored status occasioned by birth (1956) held illegal that the fact an alien was of his citizen child. Gonzalez-Cuevas Im- forced to sell his luncheonette was insuffi- migration Service, and Naturalization 515 cient stay to warrant a from deportation. (5th 1975); F.2d 1222 Cir. see Mendez v. Major, (8th Cir. To the Llacer v. and Naturalization Service, extent that such hold paren- (9th decisions that 1968), Cir. tage of a United Citizen is not a first case to interpret in its form, freely generally is cited than the mere present reduction of the proposition standing for the that eco- standard of living upon attendant returning se falls hardship per Llacer, short to his native country in nomic supra, the reading standard. A sale of hardship Asikese, extreme luncheonette in supra, or merely holding its states the exclusion from reveals that one’s chosen profession Llacer Kasravi, supra. “. Once hardship is not is extreme that forced States, to leave the United stan- economic only opportunity the usual difference secure visa will also be severely exist between the living cur- dards non-preference since tailed visa abroad. numbers and other countries ” are oversubscribed for Korea. Id., Llacer court in at Dept., “Availability State of Immigrant discussing merely economic disadvan- 1976”; March, Visa Numbers for Matter of economic tage hardship. rather than H-, 416-418; 5 I & N Dec. Matter of In Kasravi v. and Naturali- Z-, 5 & N Dec. 419—420. Petitioner’s Service, 1968) (9th F.2d 675 Cir. zation present circumstances cannot be divorced unavailability court held that history from the of his efforts to attain his occupation in one’s chosen employment status. years current Ten of labor advanc- native return to one’s ing wandering himself from a minstrel to a hardship. to constitute extreme insufficient independent successful proprietor per- will dealing decision believe the Kasravi I instantaneously upon ish deportation. disadvantage than eco- with economic more say To these circumstances, coupled Fong Immigra- Choi Yu v. nomic separation with the from his three year old son, not reach do the threshold of extreme 1971); Nishikage to blind oneself to the reality of Service, F.2d tion and Naturalization aspiration human and to take refuge in 1971); Blanco-Dominguez verbal illusions. I do not reach the ultimate question whether petitioner’s deportation cite Llacer stayed. should be permanently However, I spe- each a recitation of other without *6 hold that had established an facts which could lead the to a cific reader overwhelming showing extreme hard- of whether there conclusion was economic hardship. Pelaez v. and Natu- We take must hold of fact that “ex- ralization hardship” treme is a standard of degrees difficulty held that finding employ- range from mild to extreme. A sin- having return to a ment which may basis and of gle itself seek living standard lower not extreme with the standard equation of “extreme hardship. Again, the decision is viewed to can hardship” relative weight relative disadvantage op- mean economic when hardships coupled in the scale with to economic posed Consistent may factors which themselves other also cited, with the cases heretofore economic requisite threshold. not reach disadvantage, factors, any other absent would fall short of the extreme called to decide are We dealing with economic hard- standard. entire individual. To seek out a ship per se a basis, determination should be made same analyze claimed isolation bases, a case basis. on case other reach conclu- not, my an opinion, analysis sion is The case potentially presents at bar individual nor a fair entire assessment of beyond something quite these eco- modest surrounding such the circumstances an indi- least nomic inconveniences and merits at vidual. hearing. petitioner’s history A review his entry convincingly since should establish The case should be ordered remanded for vast before hardship petition- hearing distinction. The Law Judge expressed experience deported will if is much consistent the views er herein.