*1 court wearing its Erie coiffure appropriate-
ly may fill gap law, in a in state but may it
neither disregard nor specific overrule
holdings by the highest state’s court in
interpreting the state’s substantive law.
(cid:127) AFFIRMED.
Patricio HERNANDEZ-CORDERO and Guadalupe Ortega
Maria de
Hernandez, Petitioners,
UNITED STATES IMMIGRATION & SERVICE,
NATURALIZATION
Respondent.
No. 85-4587.
United States Appeals, Court of
Fifth Circuit.
June
The Hernandezes have four children: Victor, Jr., age 11, Lisa, age Patricio Veronica, age age 9 and 8. Victor is a citizen; youngest Mexican the three chil- dren are American citizens. subject deportation Hernandez is
Mr.
he has never
because
obtained a visa. 8
Hines, Austin, Tex.,
petition-
for
Barbara
1251(a)(1). Although
U.S.C.
Mrs. Her-
ers.
permit upon
nandez obtained a visitor’s
her
States,
entry to the United
she is also sub-
Pa.,
Rudnick, Philadelphia,
Lawrence H.
ject
deportation
because she did not de-
Immigration.
curiae AM
for amicus
1251(a)(2).
part
expired.
when it
8 U.S.C. Meese, III,
Spears,
M.
Edwin
James
applied
Mr. and Mrs. Hernandez
for a
Justice,
Gen., Dept,
Robert L.
Atty.
of
suspension
deportation
and contended
Director,
Bombaugh,
Office
they
eligible
discretionary
for
that
were
Hausman,
Div.,
Litigation,
Allen W.
Civ.
deportation
relief
would cause
because
Johnson,
Director,
Eloise
Madelyn
Asst.
E.
hardship.”
them “extreme
See 8 U.S.C.
Rosas,
Evans, Lauri Steven
Richard M.
1254(a)(1).
argued
The Hernandezes
Golding, Attys.,
Filppu, Marshall Tamor
deportation
would cause economic
D.C.,
Washington,
for I.N.S.
hardship
they
because
would be forced to
Casillas,
Director,
M.
Dist.
San
Richard
newly-bought
sell their
home at a loss and
Lambert,
Antonio, Tex.,
H.
Dist. Di-
David
difficulty finding
work in Mexi-
would
La.,
rector, I.N.S.,
Orleans,
for other
New
hardship
co. The evidence of economic
was
parties.
interested
supported
an affidavit from an econo-
specializes in Latin America. The
mist who
argued
Hernandezes also
psychological
cause emotional and
would
they
uprooted
hardship because
would be
GEE,
CLARK,
Judge,
Before
Chief
community
from the
to which
had
REAVLEY, POLITZ,
RUBIN,
grown
An
was
accustomed.
affidavit
sub-
WILLIAMS,
RANDALL, JOHNSON,
psychologist
from a licensed
detail-
mitted
HIGGINBOTHAM,
GARWOOD, JOLLY,
ing the emotional difficulties
Hernan-
JONES,
DAVIS, HILL and
Circuit
likely
deported.
if
family
dez
would
suffer
Judges.
also
affidavits re-
Six teachers
submitted
oppor-
garding the diminished educational
DAVIS,
Judge:
Circuit
W. EUGENE
tunity
in Mexico and the adverse
available
wife,
and his
Patricio Hernandez-Cordero
Her-
likely have on the
impact this would
Hernandez,
Ortega
ap-
de
Guadalupe
Maria
nandez children.
application for a
peal
of their
the denial
evidence,
evaluating all of the
After
suspension
deportation.
8 U.S.C.
immigration judge denied the
1254(a)(1). We affirm.
suspension
deportation.
for a
deporta-
immigration judge found that
I.
hardship for Mr. and Mrs.
tion would cause
children, he found
Hernandez and their
are citizens of
Mr. and Mrs. Hernandez
hardship
not “extreme.”
that the
was
Republic
They
Mexico.
have resided
recognized the economic
continuously
immigration judge
since
in the United States
at
hardship
selling newly-bought
home
a
in 1975. Mr. Hernandez
they were married
loss,
a “self-
concluded that this was
trim-carpenter contrac-
a
but
self-employed
is a
$12,000
the house was
per
inflicted wound” because
approximately
tor and earns
deportation pro-
after
several months
year.
is a housewife.
built
Mrs. Hernandez
immigration
ceedings
ap-
commenced.
assets are valued at
The Hernandezes’
employment
recognized that the
judge also
$70,000.
proximately
opportunities in Mexico are not as favor
physically present in the United States for
able as those in
States,
the United
but
a
period
continuous
of at
years
least seven
noted that it is well-established that
immediately preceding
eco
application; (2)
nomic
alone
person
cannot
is
good
constitute “ex
character;
moral
See,
hardship.”
treme
person
is
e.g.,
deportation would,
Zamora-Gar
whose
“in
cia v.
F.2d
(5th
of the Attorney General,”
Cir.1984).
re
Even
considering
sult
“extreme
to the
combined
alien or
effect of
*3
spouse,
economic
to his
parent,
child,
or
who is
potential
other
a
hardship factors,
citizen of the
United
or
immigration
States
an alien
judge
lawfully
permanent
found that the
admitted for
hardship was not
residence.
“extreme.”
1254(a)(1).
8 U.S.C.
Hernandezes are
burden is on
young,
healthy and
alien to
significant
establish
eligibility
his
family
for a sus
ties in Mexicowhere
pension
parents
of deportation.
their
and most of
Gomez-Martinez
their brothers and
INS,
v.
(5th Cir.),
sisters
593 F.2d
reside.
10
denied,
The immigration
cert.
judge spe
941,
cifically
444
295,
U.S.
100
found
S.Ct.
62
deportation
L.Ed.2d 307
not
would
(1979).
cause “extreme hardship” to any of the
three American citizen
who,
children
nota
Second, even if these eligibility require
bly,
bilingual.
are
satisfied,
ments are
the Attorney General
retains the
suspend,
discretion to
or refuse
The Board
Immigration
Appeals (BIA)
to suspend, deportation. INS v. Rios-Pine
upheld the denial of the application for a
da,
444, 446, 105
2098, 2100, 85
471 U.S.
S.Ct.
suspension
deportation.
The BIA evalu-
L.Ed.2d
(1985).
452
As
corollary
to this
all
ated
of the alleged hardships that depor-
ultimate
to deny
discretion
relief to an oth
tation would cause for the Hernandez fami-
eligible alien,
erwise
Supreme
Court
ly, including the financial hardship, the dif-
explained
has
that “if the Attorney General
ficulties of adjusting to
Mexico,
life in
and
decides that relief should be denied as a
the educational burden on the children. In
discretion,
matter of
he need not consider
affirming
immigration
judge’s determi-
whether the threshold statutory eligibility
nation that deportation would not cause
requirements are met.”
at
Id.
“extreme hardship,” the BIA expressly
stated that it had
The standard of review
“considered all
varies depending
of the
presented,
factors
on
aspect
both
which
of the
individually
statutory
and cu-
scheme is
mulatively.”
at
tier,
issue. Under the first
we review
the BIA’s findings of continuous residency
Mr. and Mrs. Hernandez brought the in
good
moral character under the “sub-
appeal,
stant
arguing that the BIA abused
stantial evidence”
Zamora-Garcia,
test.
its discretion in denying
for
97 S.Ct.
52 L.Ed.2d
(1977);
50
Diaz,
67,
Mathews v.
81-82,
426 U.S.
96
II.
1883, 1892,
S.Ct.
48
(1976).
L.Ed.2d 478
244(a)(1)
Section
and The Attorney
enjoys
General
“unfettered”
Nationality Act creates a two-tiered statu-
discretion to decide
suspend
whether to
tory
suspension
framework for
deporta-
deportation of
Jay
an alien.
Boyd,
v.
1254(a)(1). First,
tion. 8 U.S.C.
345,
eligibili-
354,
U.S.
924,
919,
76 S.Ct.
100 L.Ed.
ty
suspension
for a
of deportation
(1956).
is
It has been said that
available to an alien who:
has been
ultimate
whether
suspend
decision
de-
(1981).
grace,”
family alleged
similar to
In
a Korean
portation
Wang,
“is a matter of
pardon.
States ex that
would result in “extreme
a Presidential
United
180 F.2d
Shaughnessy,
v.
to their two American born chil
rel. Kaloudis
Cir.1950)(L. Hand).
also,
489,
(2d
spoke
See
dren because neither child
Korean.
Hintopoulos
142,
States ex rel.
at
United
S.Ct. at
72, 77, 77
Shaughnessy, 353 U.S.
S.Ct.
family
BIA
that the
had failed to
found
(1957).
621, 1
Judicial review
L.Ed.2d
prima
demonstrate a
facie case of “ex
discretionary decision is
highly
of such a
hardship,”
treme
the Ninth Circuit disa
subject
strictly limited because the
is greed, reasoning that the statute should be
uniquely
competence
power
within
143, 101
liberally construed. Id. at
S.Ct. at
political
branches. See Fiallo v.
Supreme
1030. The
Court reversed and
1477;
Bell,
Attorney General. 8 C.F.R.
3.1.
delegates
§§
and his
General
authority
have the
to construe “extreme
case,
Mrs. Hernan-
In the instant
Mr. and
hardship” narrowly
they
should
deem it
challenge the BIA’s determination un-
dez
interpreta-
wise to do so. Such a narrow
that, “in
der the first tier of the statute
is consistent with the “extreme hard-
tion
General,”
deporta-
language,
indicates the
ship”
which itself
hardship.”
tion
not cause “extreme
would
exceptional
suspension
nature
stipulated
The INS has
that Mr. and Mrs.
remedy.
good
Hernandez have
moral character and
satisfy
year residency require-
the seven
145,
at
101 S.Ct. at
ment.
decisions,
post-Wang
In
we
a series
argument
appeal is
The Hernandezes’
on
consistently
limited stan
adhered to a
First,
re-
they
twofold.
seek substantive
authority to
the BIA’s
dard
review over
of “ex-
of the BIA’s narrow definition
view
eligi
hardship”
deny
define “extreme
Second,
hardship.”
proce-
seek
treme
See, e.g.,
bility
suspension
for a
of relief.
alleged
dural
of the BIA’s
failure to
review
832,
(5th
INS,
F.2d
839
Ganjour v.
796
analyze the relevant
factors both
Zamora-Garcia,
490;
Cir.1986);
F.2d at
737
cumulatively.
reject
individually and
We
(5th
INS,
181, 185
Cir.
Ramos v.
695 F.2d
arguments in
of these
turn.
both
1983). Although
state the stan
we often
by the
of this determination
dard
review
III.
standard,
BIA an “abuse of discretion”
as
490,
Zamora-Garcia, 737 F.2d at
those
Supreme
recognized
has
Court
fully convey
extent to
narrowly
terms do not
discretion of the BIA to
broad
reviewing
in
which deference is due
hardship.”
Wang,
define “extreme
INS v.
139, 101
1027,
of the BIA’s determination
treme,” but to utilize
opinion
to define
tive review of the BIA’s determination of
highly
subjective term.2
no “extreme hardship.”4 We
per-
are
2.The
dissent
analysis
asserts that our
conflicts
Congress
3. The fact that
has reserved for itself
previous interpretations
right
phrase
grant
relief,
discretionary
"in
veto a
denial,
opinion
but
gress
which
not a
rigorous
utilized
is further
a more
evidence that Con-
availability
meant to
standard of
narrow the
review than
we
use here. But in
relief,
case,
expand
1254(c).
not
it. See 8 U.S.C.
dissent,
this
by
unlike the cases cited
Attorney
authority
doubly-insu-
General’s
is
support
argument
authorities do not
judicial
lated from
review: he is directed to
that less
opinion
is
deference
due the
General’s
opinion
formulate his
as to what constitutes
by
if the
is reached
the Attor-
hardship.
"extreme”
None of
by
cases
cited
ney
delegate
General’s
rather than the
the dissent
statutes
involves
that authorize the
personally.
General
formulation of an
about
definition
24, 25,
Bagamasbad,
In INS v.
U.S.
highly subjective
of such a
term.
200, 201,
(1976),
S.Ct.
Bagamasbad by Attorney General's and not was made Gener- delegates, by Attorney al's and not General Generalhimself. only in issue this case is whether the record the majority deem sufficiently severe to be BIA, demonstrates that the as the Attor- “extreme” must be “uniquely extreme, at ney delegate, General’s abused its discre- or closely approaching the outer limits of in finding tion that the Hernandezes will the most severe hardship an alien could not suffer “extreme deported if suffer AND so severe that ANY reason- to Mexico. The record in simply this case person able would NECESSARILY con- does not reveal such an abuse of discretion. clude that the hardship is extreme.” Indeed, we expect would any hardworking (Emphasis added.) This interpretation aliens deported are who to an economically strips phrase “extreme hardship” of deprived country after enjoying high a virtually all content and abdicates our re- of living standard in this country for seven sponsibility under the Administrative Pro- years to suffer hardship similar to that cedure Act to against assure arbitrary and by demonstrated the Hernandezes. In capricious administrative action. I there- short, we see unique no hardship or un- fore respectfully dissent. usually severe hardship that the Hernan- dezes suffer will if deported are I. approaches Mexico that of hard- level ship required compel finding of “ex- As Supreme held Court in Bowen v. treme hardship” by the BIA. Michigan Academy Family Physi- cians,1 Accordingly, the begin order of deny- the BIA with the strong pre- “[w]e ing sumption suspension for a Congress that of de- judicial intends re- portation is view of administrative action.”2 Bowen reminds that us it has been policy
AFFIRMED.
Congress to avoid “blank checks drawn to
the credit of some
RUBIN,
ALVIN B.
administrative officer or
Judge,
Circuit
board.”3 Justice
POLITZ,
whom
Potter Stewart
JOHNSON,
observed
JERRE S.
for the
Court
WILLIAMS
Rusk v.
Cort4
JONES,
EDITH H.
Circuit
upon
showing
Judges
join,
“clear
dissenting:
and convincing
Congress
evidence that
so intended” should
The majority opinion professes to adhere
the courts restrict
judicial
access to
review.
to the statutory mandate that
federal
And, as the Court
Bowen,
concluded in
courts review decisions
made
subor-
ordinarily presume
“[w]e
that Congress in-
dinate government officials, but in fact the
tends the
obey
executive to
statutory
its
opinion adopts a standard of review that
and,
commands
accordingly,
it expects
renders administrative decisionmaking un-
grant
the courts to
relief when an execu-
reviewable. The court
thus abandons
agency
tive
violates such a command.”5
“honest,
these
dependable, hardworking
members of society” to the indifference of
Even discretionary actions are reviewa-
the bureaucracy.
*7
Congress
While
has or- ble for abuse of the discretion imparted,
dered relief for aliens
deportation
whose
for discretion is to
soundly
be
exercised
would subject
or
them
their children to
and is not a license for fiat.6 In the words
hardship,
extreme
only hardship
Madison,
of James
“You must first enable
— U.S.-,
2133,
1.
106
at-,
S.Ct.
4. 369 U.S. 82 S.Ct. (1962). L.Ed.2d 809 Congress governed; language did not this government to control the vest Attorney General or his subordinates place oblige it to control in the next and with “ad hoc discretion” to be exercised at Congress reposed in the circuit has itself.” Congress the whim decisionmaker. obliging responsibility for ad- courts the undoubtedly delegated to the At- discretion agencies to control themselves ministrative torney General to determine in the first congressional to their man- and to adhere hardship.11 instance what is extreme The Administrative Procedure Act date. The agree majority ultimately that this discre- reviewing court shall instructs us: “[T]he tion is not absolute and that the administra- decide, law, questions of inter- all relevant tive decision is not unreviewable. The ma- provi- statutory and pret constitutional however, opinion, jority refers to the stan- sions, meaning appli- or and determine “strictly dard of review not as limited” agency terms of an action. cability narrow,” “exceedingly per- and but also as reviewing court ... hold The shall— mitting “virtually no substantive review” action, agency find- unlawful and set aside of General’s “unfettered dis- (A) ings, found to arbi- and conclusions be— citing single precedent cretion.” Without a discretion, or capricious, an trary, abuse any authority, or other then not in accordance with law.”7 otherwise practical applica- states a formula that in equated this Supreme Court has in every tion must result the affirmance of whether responsibility to determine our majority administrative decision. The of- judg- error of “there has been a clear hardship no illustration of kind fers meaningless if it is ment.”8 Review is extremity, meet its definition of that would that assures by a standard circumscribed hardly imagine anything one can but but hardship any one as a so dire that rea- but result. death person necessarily sonable would consider Im- of section provisions it extreme. migration Nationality Act9 are de- plain meaning This is not the plight of aliens signed to ameliorate the hardship” “Extreme words of the statute. deporta- subject be who would otherwise simply “hardship not is restricted [that] (a) provides: section tion. Part of this extreme, closely approach- uniquely is at or may, in his discre- Attorney General “[T]he ing limits of the most severe the outer tion, deportation” adjust an suspend and so se- hardship the alien could suffer “lawfully ad- status to that of one alien’s any person reasonable would nec- vere that mitted,” if the alien hardship is ex- essarily conclude that the present in the United physically has been Congress intended to restrict treme.” Had period of not less States for continuous narrowly, easily it could have sub- relief so immediately preceding years than seven in next like those used stituted words suspen- for the date of [his 244(a), where relief for cer- part of section sion], proves during all of such groups such as convicted tain of aliens person good period he was and is a is limited to cases criminals and anarchists character; person whose moral and is extremely “exceptional and unusual would, in the hardship.” majority’s definition General, result in extreme as as is at least severe “extreme spouse, words; to his meaning yet by to the alien or plain of these child, distinguishing language used these parent, or who is a citizen of subsections, Congress made clear its *8 two .10 United States... 10. 8 7. 5 U.S.C. 1254(a)(1) (1982) added). (emphasis add- U.S.C. (emphasis § 706 ed). 8. Volpe, 401 Overton v. to Preserve Park Citizens 416, 814, 824, 402, L.Ed.2d 136 S.Ct. 28 U.S. 91 11. INS v. 139, 144, Wang, 101 S.Ct. 450 U.S. Davis, (1971); Law K. Administrative see also 5 1031, (1981). 1027, 123 67 L.Ed.2d 29:7, 1984). (2d at 359 ed. Treatise 12. 8 U.S.C. (1982). 9. 1254(a)(2) (1982). 8 U.S.C. 1254 566 intent to create in i.e., the first subsection a showing “a [they that arbitrary are] compassionate
more
standard
in
than
and without reasonable foundation.”17 In
second.
Woodard,
and
Inc. v. United
Loftin
States18 we
an
followed
Fifth
earlier
Cir
Supreme
interpreted
Court has
cuit
agreed
case19 and
with seven other
extreme-hardship requirement only in INS
holding
circuits20 in
that determinations
Wang.13 v.
majority rely
on
opinion
made “in the
of” the Commissioner
decision, Wang
involved a motion to
of Internal
pursuant
Revenue
to 26 U.S.C.
reopen
order on the basis of
446(b) are reviewable for
an “abuse of
hardship,
extreme
not an initial extreme-
discretion” which
“proved
must be
by a
Supreme
determination. The
clear showing.”21 Interpreting another In
Court did not specifically address the stan-
statute,22
ternal Revenue
the Second Cir
dard of
evidence,
review—substantial
cuit in Caldwell v.
discretion,
Commissioner23
abuse
held
or a determination of
that the standard of review for a
caprice^
arbitrariness or
determi
applied
be
—to
nation made “in
opinion
of” the
initial Board
Com
determinations of no extreme
missioner of
hardship.
Internal
It
Revenue was
concluded
that the
“abuse
Board
of discretion.”24
had not
authority”
its
in find-
“exceedfed]
ing
prima
showing
facie
of extreme
then,
Until today,
judicial interpretation
hardship insufficient to
reopening,
warrant
phrase
opinion
“in the
of” has uni-
that, therefore,
reopening of
depor-
formly allowed a standard of
at
review
hearings
tation
required.14
was not
least as broad as “clear abuse of discre-
tion.” A
majority’s
multitude
statutes
contain
assertion
the words
sim-
ilar
opinion of,”
“in the
articulations. More
used in
than 150 of
as
section
these
244(a)(1),
are listed in
strictly
the appendix.
limit
In
attempt
review of “no
an
ex
treme
reconcile
their
previous
determinations
with
to a stan
de-
dard even
cisions
ordinary
interpreting
narrower than
the words “in
“abuse
the opin-
of,”
of discretion” conflicts
ion
majority argue
the consistent
that section
reading
circuits,
244(a)(1)
that several
including
contains a
this
“double insulation” ren-
one,
given
dering
to these words when
it more
used
deferential to the executive
in other
example,
statutes. For
branch
Ahrens
than
other statutes that use this
Rojas,15
v.
which
phrase.
another
Congress, however,
involved
section
surely did not
Nationality Act,16
intend
the mere use of the word “ex-
we held that determinations made “in
depart
treme” to
general
from the
review
of” the
General are re
standards of the Administrative Procedure
simple
viewable for
“abuse
discretion”— Act
applied
as
in all of these instances.
13. 450 U.S.
139,
1027,
101
(1st Cir.1970);
S.Ct.
5^7 wrote, Judge Friendly Wong The late in Immigration Board of Appeals able, are INS,25 Wing Hang v. that exercise of the through exposure their range to a wide “subject cases, General’s discretion to is develop comparisons ap- between obligation the restraint of the of reasoned plicants, their determination of what consti- decision and hence of reasoned elaboration hardship requires tutes knowledge of hu- governing of a fabric of doctrine successive affairs, man judgment, empathy qual- — decisions.” Discretion must be exercised ities that judges federal should have in at reason, caprice. else it is but The least as much measure as administrative power essence of the rational exercise of is officers. explanation of its use. Neither the The majority opinion is, leitmotiv of the hearing Immigra officer nor the Board of bureaucracy “Let the do as it will.” The however, Appeals, provided tion has us Act, however, Procedure Administrative explanation. with such an commands us to review the decisions of determining In Congress what intended such administrative officers to determine to be the breadth of administrative discre- whether have made a clear error of scope judicial tion and review over judgment. they have, If the decision is an exercise, its we should also consider abuse of discretion. rank of the official whose decision is re- Congress may rightly viewed.26 decide II. that cabinet officers deserve more latitude Patricio Hernandez-Cordero is now in making decisions is than accorded lower- years age. wife, Maria, His They is 37. ranking making civil in servants routine in lived the United States for twelve pronouncements. majority opinion As the years, Patricio since he was 22 and Maria however, recognizes, it was not the Attor- since she children, was 25. Three of their ney General who made or reviewed this Patricio, Jr., 11, Lisa, 9, Veronica, now administrative delegated decision. He has 8, are United States citizens who have nev- authority special officers, his inquiry er in another country. lived Mrs. Hernan- them, as the statute labels who have child, Victor, dez has a fourth who is now regulation in judges. been elevated title to Mexico, 14. Born in he lived there with his Their subject decisions are in turn to re- family brought mother’s until he was to the only by group, view an internal the Board years ago United States six to become a Immigration Appeals. Neither the At- family. member the Hernandez General, torney Deputy Attorney his Gen- eral, any nor Attorneys his Assistant The and Naturalization Ser- General has ever considered stipulated whether de- vice has that the Hernandezes portation family of the Hernandez good hearing would are of moral character. hardship. occasion them extreme couple This de- officer found that the Hernandez is “industrious, cision was in depths law-abiding, made type bu- and the reaucracy. anyone neigh- would desire as a next-door are, They majority opinion bor.” as the defining scope Another factor in states, family “[a]ny of us would be unique expertise discretion is the happy gain citizenship.” to see ... agency subject question.27 on the in Texas, determination of what constitutes family Georgetown, extreme lives person family for a or a is not an where Hernandez a home on built a lot Hernandez, question requiring specialized esoteric purchased in 1983. who is self- training familiarity $12,- or employed carpenter, with technical mate- trim as a earns hearing has, rials. year, through officer and the 000 a hard work Davis, (2d Cir.1966). 25. 360 F.2d 27. See K. Administrative Law Treatise 29.00-3, (Supp.1982) (analyzing at 543-44 Na Martin, Immigration 26. See T. Aleinikoff & D. SEC, tional Resources Council v. Defense Davis, (1985); Policy Process and 528-30 K. cf. (D.C.Cir.1979). F.2d 1031 29.00-3, Administrative Law Treatise at 543- (Supp.1982). *10 thrift, Mexico; (2) having and accumulated assets a forced to return to an econo- $70,000. mist, detailing in- value of These assets the severe economic hard- total home; vehicle; encounter; ship family their his clude a motor that would and tools; (un- (3) teachers, piece describing and another of real estate six the serious edu- they fully improved), paid. difficulty for which have cational and emotional that the school-age Hernandez children suf- would found, hearing major- officer and the parents deported they if fer their were concede, ity deportation that would cause perforce accompanied family. Hardened, however, family hardship. fact,” seeing many deported, hearing after others he eval- “The mere officer wrote, hardship uated as less than extreme the “that Mexico is in the midst of an being completely uprooted im- crisis would economic does not mean that there pose family. employment opportunities on the are no there.” mention, however, He does not the evi- appraisal The administrative of the suf- techniques dence that construction are so fering by family that would be endured this different in Mexico that Hernandez would piecemeal, compassion, was devoid of likely employment find no for his Ameri- wrong. hearing Tick tick the officer carpenter. can-learned skill as a trim Mrs. separately evaluated each individual hard- “relatively healthy,” Hernandez is the ad- ship: Selling a home at a loss is an econom- recites, appraisal though ministrative even Besides, hardship, ic but not extreme. requires she suffers from asthma and wound is “self-inflicted” because the house probably treatment and medication that she was built several months after could not afford to continue in Mexico. begun. proceedings family were For a give up creditors, sufficiency Testimony employers, its hard-won economic from hardship, is a it but is well established that and teachers confirms that the Hernan- economic exemplary family alone cannot constitute dezes are an who have majority opin- “extreme long worked and hard to establish a life for —as repeats, citing ion even one of our decisions themselves in the United States who isolated, undisputed, for that devastating consequences but observa- would suffer if displaced family tion. The deported will leave be- to Mexico. a recitation relatives, many hind friends and and this of evidence from the record is sometimes redundant, hardship; yet, according too is a in only to the this instance it is the finding, way adequately portray family. administrative it also is not ex- treme. Johnson, Dan Vice President of Ameri- speak Rock, Spanish,
While the four children can Bank Round which financed the schools, home, says: all of them have entered American Hernandezes’ has “[Patricio] Spanish. and none reads or writes several loans here and obtained has han- hearing may very satisfactory officer found that it be diffi- dled them in a man- Mexico, adjust cult living for them to to life in ner. ... makes his as a trim [He] country carpenter; great three of them have never and he takes a deal of known, work, they pride only but that can do so in in many without not his but all, hardship: acquired years.... “extreme” After as the he has tools over the Immigration Appeals my opinion Board of indifferent- It is that Patricio Hernandez noted, ly respect family their in any circumstances this and his would be an asset to “significantly country not different” are from those which chose to live. He work; pride of other native-born American children re- takes in his and his word is his turning parents’ to their homeland. bond.” hearing Byram, owner, officer considered all fami- John D. a ranch states and, therefore, Hernandez, fungible apparent-
lies to be that Maria who has received ly weight grade attached no to affidavits from: a second education and first teens, concluding psychologist, that the Her- came to the United States in her family nandez would suffer severe emo- him on his worked for ranch from 1972 psychological consequences tional and if until 1977. Her husband worked for him _ from 1975 to 1977. “Since that time I gual classes is a well-adjusted [H]e had continued contact with the Hernandez young man many friends. Under family. I consider them outstanding *11 to be circumstances, these it is likely that he people great who would be a asset to would have academic and social difficulties society. American They working, are hard if he were forced to move back to Mexico persons and highest moral caliber. They have assimilated themselves well into Even if each of the factors listed our society.” hearing officer, considered singly, did not Levens, Sue who holds a degree master’s amount to extreme hardship for Her- and bilingual teaches program of the parents nandez any or of their three citizen Georgetown Independent District, School children, the that, decision together, taken Cynthia and Balfour, kindergarten teach- they not, ignores do the evidence so com- er, only attest not to the conscientiousness pletely as to be arbitrary and capricious. of the school, Hernandez children in but Determining when the cumulative effect of praise also the cooperation partic- and hardship, like the cumulative pain, effect of ipation of parents the Hernandez in school becomes “extreme” obviously calls for projects, parent conferences, and other judgment. There is no When, barometer. school functions. however, many so hardships are to be im- Wheeler, Laura an elementary school posed, the decision impact that their will teacher in the Round Independent Rock not be extreme should not rest merely on District, School writes of and Lisa Patricio: the ritualistic incantation formula, of the “They very are highly motivated children. “having considered all of the factors They well-adjusted are have and made presented, both individually and cumula- many friends here .... I believe it would tively.” The majority are content both to extremely be difficult for and Lisa Patricio approve conjuration this and repeat to it to leave familiar surroundings and enter an because there is “little else ... the BIA environment that they totally would be could have said on subject,”28 and be- teacher, unaccostumed to.” Another [sic] they cause find no hardship “extreme” un- Wittenberg, Shari writes of Patricio: “He less “uniquely it is extreme.” many friends, has made not in his Thus, special inquiry officer and the class, but with other on our students cam- Board of Appeals pus. The children enjoy other —subor- compa- his government dinate their officers—washed ny. Patricio ais hard worker and does his hands of the family Hernandez their very best.... I would hate to think of a duty implement Congress’ humanitarian child like being pulled Patricio from our policy. Congress could, course, system school placed in an unfamiliar illegal ordered all aliens deported. It setting. He potential has so much that I chose, reasons, for benevolent not to exer- feel could if put be lost he into an was power cise this doing when so would occa- atmosphere that would learning distract his sion “extreme hardship.” Although it re- Turner, abilities.” Wendy one Patricio’s power served the to overturn decisions that teachers, writes: always “He was smiling clement, are too it obviously intended mer- and had a positive I sincerely outlook. cy else it permitted would have no relief. believe that change drastic being as such statutory measure of is to mercy avoid sent to Mexico would have a very negative hardship infliction of that is “extreme.” effect on Patricio.” inflicted on family this defies Smith, Erlene Guidance Counselor for any reasonable term Northside Middle School in Georgetown, requires our intervention. Texas, says of Victor Hernandez: “His grades for 83/84 possible school year were all It is that this family may ulti- A’s and B’s speaks English .... mately by invoking be saved compas- [He] fluently and from released bilin- sionate provisions amnesty Immigra- [has been] (5th Cir.1985). 755 F.2d Sanchez Cf. 112b(a) (1982) (“in opin- tion Reform Act of and Control 1986.29 1. U.S.C. that, majority agree do not as we have President”). ion of the suggestion done in other at the cases (1982) (“in 2. 2 U.S.C. government,30 stay our we should decision President”). give apply the Hernandezes a chance to 8123(b) (1982) (“in opin- 3. 5 U.S.C. change newly for a of status under that Secretary Labor]”). ion of the [of They may enacted statute. indeed be able but, requirements, they 150dd(d) (1982) (“in to meet its until opin- 4. 7 U.S.C. so, can do the case show is not Agriculture]”). Secretary ion of the [of technically if moot. Even the Hernandezes (1982) (“in Id. *12 by Congressional are rescued this act of Secretary Agriculture”). of however,
grace, majority the decision will (1982) (“in Id. opinion 6. 389a the of the § abandon other families in like circumstanc- Agriculture”). Secretary of equally unfeeling es to unfettered and judgments by bureaucracy. 499f(a) (1982) (“in the Id. opinion 7. the of § Secretary Agriculture]”). the [of III. 499f(c) (“in Id. (1982) opinion 8. the of § conclude, majority “a court has vir- Secretary Agriculture]”). the [of tually no substantive review of the BIA’s 936a(c) (1982) (“in Id. opinion 9. the of § hardship’ finding.” ‘extreme This limits Secretary Treasury”). the of the judicial narrowly the role far more than 10. Id. 1964(d) 1985) (“in (Supp. Ill the § Congress any intended. The of opinion Secretary Agricul- of the [of of discretion” reasonable “abuse standard requires family. ture]”). relief for this unusual De- portation will inflict on each of its mem- 2805(c) (1982) (“in Id. opinion 11. of the § bers, family collectively, and on the the Secretary Agriculture]”). the [of economic, social, personal, most severe and 1182(a)(15) (1982) (“in 12. 8 U.S.C. the § psychological hardship. inju- That kind of General”). opinion Attorney of the ry is extreme. However much latitude is 1182(d)(5)(A) (“in 13. Id. (1982) opin- the § given immigration the the stat- officials General”). ute, Attorney their ion of the decision that the Hernandez fami- ly hardship will not suffer in the extreme 1251(a)(8) (1982) (“in 14. Id. opinion the § totality as a result of of the circumstances General”). Attorney of the is callous and unmindful of the will of 1251(c) (1982) (“in 15. Id. opinion the of § Congress. suffering It observes without General”). Attorney the compassion, insensitively dismisses the 1253(c) (1982) (“in 16. Id. opinion the of § agony pain of others as it is not an General”). Attorney the for those others to bear. extreme arbitrary capricious, It is therefore 1253(f) (1982) (“in 17. Id. opinion the of § complete abuse of discretion. It is our General”). Attorney the duty adopt proper standard of review 1445(a) (1982) (“in Id. § opinion 18. the of and reverse it. General”). the reasons, respectfully I For these DIS- 804(c) (1982) (“in opin- 19. 10 U.S.C. the § SENT. President”). ion of the 875(c) (1982) (“in Id. opinion 20. the of § APPENDIX President”). the opinion placing Statutes discretion the 4354(b) (1982) (“in Id. opinion 21. the of President, General, of the the or § Secretary Secretary Army]”). a Cabinet the the [of 99-603, 201, 3359, 5, 1987); INS, (5th 29. Pub.L. No. 100 Stat. Jan. Galvan v. No. 86-4365 § (to 1255A). 29, 1986); INS, be codified at 8 U.S.C. Hidalgo-Zelaya § Cir. Dec. v. No. (5th 23, 1986); 86-4411 Cir. Dec. Pouralborz stays, examples granting 30. For of orders see INS, (5th 1986). No. 86-4391 Cir. Dec. INS, (5th Lopez-Rayas v. No. Cir. 85-4732 Feb. 1987); (5th Cir. De Silva v. No. 85-4496 Id. 666g (1982) (“in
45. opinion the of § Secretary the Army”). of the (1982) Id. 4501(c) (“in opinion 22. the of § (1982) (“in Id. 46. opinion the of Secretary Army”). § the of the the President”). (1982) (“in Id. opinion 23. the of § Id. Secretary the Navy”). (1982) (“in of the 47. opinion 691c the § of Secretary Interior”). the of (1982) (“in the Id. 24. opinion the § Secretary Force]”). the Air (1982) (“in Id. [of 48. 695a opinion § 25. Id. 9501(c) (1982) (“in opinion Secretary Interior”). of the § Secretary Force”). of the Air Id. (1982) (“in 49. 696a opinion § 9779(b) (1982) (“in Id. opinion 26. Secretary Interior”). § of the Secretary Force]”). the Air [of Id. (“in 50. (1982) 715e opinion § (d)(3) (1982) (“in 27. 12 U.S.C. 1715Í Interior”). the Secretary of the opinion Secretary of the Housing [of Id. 773i(f)(2) (1982) (“in 51. opinion Development]”). and Urban Secretary Commerce]”). [of Id. 1715v(c)(3)(1982) (“in opinion 28. (1982) (“in Secretary Housing and Ur- [of President”). ban Development]”). (“in 825s *13 21(b) 1985) (“in (Supp. 15 U.S.C. Ill § Secretary the Army”). of the opinion the of Secretary the ... [of 831d(i) (1982) (“in Id. 54. Presi- § [the Transportation]”). opinion”). dent’s] Id. 144(b)(1) (1982) (“in opinion the § Id. 835c(b) (1982) (“in 55. opinion the of § Secretary Commerce]”). of the [of the Secretary Interior]”). the [of 640(b) (1982) (“in Id. opinion the of § Id. 1244(d)(3) 1985) (“in 56. (Supp. Ill § President”). the opinion the of Secretary the the [of (1982) (“in opinion 16 U.S.C. 40b the § Commerce]”). Interior or of Interior”). Secretary of the of the 1533(b)(8)(1982) (“in Id. 57. opinion the § Id. (1982) (“in opinion 242 the of the § Secretary of the Interior]”). the [of Secretary Interior”). of the 1643(b) (1982) (“in Id. 58. opinion the of § Id. (“in (1982) 407m opinion the of § Secretary the Agriculture]”). [of Secretary Interior]”). the the [of 843(d) (1982) (“in 59. 18 U.S.C. opin- the § Id. (“in (1982) 430k opinion the of § Secretary ion of the the Trea- [of Interior”). the Secretary of the sury]”). Id. (1982) (“in opinion 458a the of § Id. 2101(d) (1982) (“in opinion 60. the of § Secretary Interior]”). the the [of General”). Attorney the Id. 459b-2(a) (1982) (“in opinion the § 2386(A)(5)(1982) (“in Id. 61. opinion the § Secretary of the Interior]”). the [of General”). of the 459c-4(a) (1982) (“in Id. opinion the § (“in Id. (1982) 62. 4003 opinion the of § Secretary Interior]”). of the the [of General”). the (1982) Id. 459d-2(a) (“in opinion the § 81c(a) 1985) (“in 63. (Supp. 19 U.S.C. Ill § Secretary Interior]”). of the the [of opinion Secretary the of the of the 459f-ll(b) Id. (1982) (“in opinion the § Treasury”). Secretary of the Interior]”). the [of 1491(b)(1) (1982) (“in Id. 64. opinion the § Id. 460o-2(a) (1982) (“in opinion the § Secretary of the Treasury]”). the [of Secretary Interior”). of the of the 1498(a)(ll) (1982) (“in Id. 65. opinion the § Id. 460kk(n)(4)(B) (1982) (“in the § of Secretary Treasury”). the of the
opinion Secretary of the the Interi- [of or]”). Id. 1526(e)(2) (1982) (“in opinion 66. the § (1982) (“in Secretary Treasury]”). of the Id. the Secretary 485 of [of § [the Agriculture’s] opinion”). (1982) (“in 67. 2(j) 20 U.S.C. the § 1087— Id. (1982) (“in opinion opinion 518 the Secretary of the of the Edu- § [of Secretary Agriculture”). cation]”). of 572 (“in (1982) Id. opinion
92. 753 the of the § Interior]”). Secretary the [of (1982) (“in opinion 101 68. U.S.C. the § (1982) (“in Id. opinion 93. the of § President”). of the Secretary Interior]”). the the [of (1982) (“in Id. § opinion 69. 113a the of 1522(b) (1982) (“in Id. opinion 94. the of § Secretary Agriculture]”). the [of Secretary Interior]”). the the [of Id. (1982) (“in opinion 70. 114a the of § 4.46(b)(1982) (“in opin- 95. 26 U.S.C. the § Secretary Agriculture]”).. the [of Secretary ion of the the Trea- [of (1982) (“in Id. opinion 71. 114c the of § sury]”). Secretary Agriculture]”). the [of (1982) (“in Id. opinion 96. the of the § 375(b) (1982) (“in Id. opinion 72. the of § Secretary Treasury]”). the [of Secretary the Health and Human [of 7324(2) (“in Id. opinion 97. the Services]”). § Secretary Treasury]”). the the [of (1982) (“in Id. § opinion 73. the of the (1982) (“in Id. opinion 98. the Secretary Treasury”). § Secretary Treasury]”). the the [of (“in opinion 74. 22 U.S.C. 277f the § 7513(b) (1982) (“in Id. opinion 99. Secretary State”). § Secretary Treasury]”). [of 1978(a)(3)(B)(1982) (“in Id. opin- 75. § (1982) (“in opin- 100. 29 U.S.C. Secretary ion of the or Commerce § [of President”). Interior]”). ion of the 502(a) (1982) (“in 101. Id. 2304(c)(1)(C)(1982) (“in Id. opin- 76. § Secretary State”). Treasury]”). Secretary ion of the [of 1112(e) (1982) (“in Id. (1982) (“in 102. 2314(g)(4)(A)(iii) President”). Secretary Labor]”). opinion of the [of (1982) (“in 2755(d)(1)(C) 103. 30 (1982) (“in U.S.C. Sec- opin- [the President”). retary opinion”). ion of Interior’s] *14 (1982) (“in 104. Id. 211(c) (1982) (“in opinion the of Id. 3311(a) opinion 79. the of § § Secretary Interior]”). President”). the the the [of 642(c) (1982) (“in Id. (1982) (“in opinion 105. the of Id. opinion 80. 3618 the of § § President”). Secretary Interior]”). the the the [of 865(a) (1982) (“in 106. Id. 4084(c) (1982) (“in opinion the of Id. opinion 81. the of § § Secretary Interior]”). State”). the the Secretary the of [of 923(c) (1982) (“in Id. (1982) (“in opinion 107. the of opinion 82. 25 48 U.S.C. the § § Secretary Interior]”). Interior”). the the Secretary of the of the [of (1982) (“in 108. Id. 1001 Id. (1982) (“in opinion the of opinion 83. 229 the of the § § President”). Secretary Interior]”). the the [of (1982) (“in (1982) (“in opin- 109. 33 U.S.C. 410 the Id. 84. 263 § § [the President’s] Secretary Army”). ion of the of the opinion”). (1982) (“in 110. Id. (1982) (“in opinion 415 the of Id. Secretary 85. 312 of § § [the Secretary Army”). of the the opinion”). the Interior’s] (1982) (“in Id. opinion 111. 494 Id. (1982) (“in the of opinion 86. 348 the of the § § President”). Secretary Transportation”). the of 499(a) (1982) (“in Id. opinion 112. (1982) (“in the of Id. opinion 87. 564n the of § § Secretary Transportation”). the of Secretary Interior]”). the the [of (1982) (“in 113. Id. opinion (1982) (“in 513 the of Id. opinion 636 the of the 88. § § Interior”). Secretary Transportation]”). the Secretary of the [of (1982) (“in 114. Id. (1982) (“in opinion 583 the of Id. opinion 89. 677k the of § § Secretary Army”). the of Interior]”). the Secretary the the [of (1982) (“in Id. (1982) (“in opinion 115. 591 the Id. opinion 90. 677u the of of § § Interior]”). Secretary Secretary Army”). the the the of the [of (1982) (“in Id. 116. Id. (1982) (“in opinion opinion 91. 700 the of the 629 the of § § Secretary Interior]”). Army”). Secretary the the of the [of
573 137. Id. (1982) (“in 145 opinion § the of the Secretary of Interior”). the 117. Id. (1982) (“in 702d opinion § the of Id. 138. (1982) (“in 154 the Secretary § Secretary of the Army”). [the of the opinion”). Interior’s] Id. 118. 1985) (“in 855 (Supp. Ill § the Id. 139. (1982) opinion 315j (“in § of the the President”). opinion of the Secretary of Interior”). the 119. Id. 944(e) 1985) (“in (Supp. Ill § the Id. 140. (1982) (“in opinion 374 opinion § of the the Secretary Labor]”). of [of the Secretary of Interior”). the 120. Id. 1124(d) (1982) (“in opinion § the Id. 141. (1982) (“in of the 375 Secretary opinion § the Commerce]”). of [of the Secretary Interior”). of the Id. 1904(e) 121. (1982) (“in opinion § the Id. 142. (1982) (“in of 375b the Secretary opinion § the the relevant of [of de- the Secretary partment]”). Interior]”). the [of Id. 143. (1982) (“in 417 122. 36 opinion § U.S.C. the (Supp. 1985) (“in 3204 § Ill of the Secretary opinion the Interior]”). the of Secretary [of the of the Navy, the Id. 144. Secretary (1982) (“in of Force, Air 419 the opinion § the of or the Secretary of the Army”). Secretary Interior]”). the [of 123. 38 Id. 5014(b) (1982) 145. (“in (1982) (“in U.S.C. 434 § the opinion § the of opinion President”). the Secretary Interior”). 124. 40 Id. (1982) (“in U.S.C. 146. (1982) (“in 258e opin- the 466 § opinion § the of ion of the Attorney General”). the Secretary Interior]”). the [of 125. Id. 874(e)(2) Id. 147. (Supp. 1985) (“in (1982) (“in Ill § 470 opinion § the of opinion the of the Secretary Secretary the Interior”). of of the Interior”). Id. 148. (1982) (“in 561 opinion § 126. (1982) (“in U.S.C. the Secretary 11a opin- Interior”). § ion of the Secretary of Army”). Id. 149. (1982) (“in opinion § 127. 42 300s-4(b)(2) (1982) (“in Secretary U.S.C. Interior”). § opinion of the Secretary Health Id. 150. (1982) (“in [of opinion § Services]”). Human the Secretary of Interior”). Id. 128. (1982) (“in opinion 151. 44 (1982) (“in U.S.C. opin- the Secretary Health [of and Human ion of the Secretary Agriculture]”). [of Services]”). (“in U.S.C. 3141(a)(2) (1982) (“in President”). of the Secretary Health and [of Human 153. 722(b) (1982) (“in the opinion *15 Services]”). Secretary the Transporta- ... [of Id. 3142(b)(4) 130. (1982) (“in opin- § the tion]”).
ion of the Secretary Health and [of 154. U.S.C.App. (Supp. Ill 1985) § Services]”). Human (“in the opinion of the Secretary [of Id. 3161(b) 131. (1982) (“in opinion § the Commerce]”). of the Secretary Health and [of Human 155. Id. (Supp. (“in 1985) Ill § the Services]”). opinion President”). of the Id. 3214(e) 132. (1982) (“in opinion the § Id. 1111(f) 156. (Supp. 1985) (“in Ill § the of the Secretary Health and Human [of opinion of ... the Secretary of Trans- Services]”). portation”). Id. 4654(c) 133. (1982) (“in opinion the § 157. Id. 1124(a) (Supp. 1985) (“in Ill § the of the Attorney General”). ... opinion of Secretary Transporta- Id. 8402(e)(2)(1982) 134. (“in opinion tion”). § Secretary Health and [of Human 1152(b) Id. 158. (Supp. 1985) (“in Ill § Services]”). opinion of the Secretary Transpor- [of 10508(b) 135. (Supp. 1985) (“in Ill § tation]”). opinion of the Attorney General”). 159. 1211 (Supp. 1985) (“in Ill § (1982) 136. 43 (“in U.S.C. opinion § Presi- of the Secretary [the Transporta- opinion”). tion”). dent’s] 1247(b) 1985)(“in (Supp. 160. Id. Ill § Secretary
opinion Transpor- of the [of
tation]”). 1985) (“in (Supp. Ill
161. Id. § opinion Secretary Transpor- of the [of
tation]”). (1982) (“in U.S.C.App. 1604(j)(4) § Secretary Transportation’s]
[the
opinion”). 1653(i)(3)(1982)(“in opinion
163. Id. § Secretary Transportation]”). [of 1654(m)(2)(1982) (“in opin- Id. § Secretary Transporta- ion of the [of
tion]”). 167c(b) (1982) (“in
165. 50 U.S.C.
opinion Secretary the Interi- [of or]”). 453(a)(6) (“in (1982)
166. Id. Secretary Defense]”). [of 4(b) (1982) (“in U.S.C.App.
167. 50 President”).
opinion of the 10(i) (1982) (“in
168. Id. President”). 1741(d) (“in
169. Id. Secre- [the
tary Transportation’s] opinion”). BOGGS,
In the Matter of BOBBY
INC., Debtor. BANK,
TRINITY NATIONAL
Plaintiff-Appellant, BOGGS, INC., Defendant,
BOBBY Receivership of Judicial
Office Insurance Texas,
for the as State Receiver for *16 Indemnity Company Mary-
Eastern
land, Appellee.
No. 87-1013
Summary Calendar. Appeals,
United States Court of
Fifth Circuit.
June