*2 Bеfore WIGGINS, KOZINSKI and Judges. Circuit KOZINSKI, Judge: regulations INS require that an alien in a deportation hearing who to be eli- gible for relief from deportation be so ad- vised the Immigration Judge. We con- sider the record here contained enough evidence of Moran-Enriquez’s eligibility for relief to this requirement.
Facts
Moran was lawfully admitted to the Unit-
ed
States for
residence on Octo-
15, 1979,
ber
as an immediate relative of a
United States citizen.
perma-
While still on
status,
nent resident
he was convicted in
Arizona of two crimes involving moral tur-
pitude.1
got
word of these convic-
tions and ordered
to show cause
why
deported.
he should not bе
A
September
held on
before an
person
years
convicted on one count of
age.
sexu-
under 15
Arizona law
person
age
al abuse of a
or older
nondangerous,
classifies both crimes as
nonre-
attempted
and one count of
petitive
sexual abuse of a
offenses.
deportable
found
who
the father of three children born of
241(a)(4)
of the
and marriage, all of whom are U.S. citizens.
Act,
1251(a)(4)
Nationality
8 U.S.C.
would result
Whether
(1982). Represented
by counsel who
hardship to
his wife
children
pro-
212(h)’s
somewhat detached from the
seemed
he would meet section
and whether
*3
ceedings, pеtitioner
apply
any
did
explored
not
for
requirements
not
in the
other
was
deportation
IJ
relief from
and the
stated
did not
counsel
any
that
of
he did not know
relief from
the issue and the IJ did
advise
raise
not
deportation
212(h) might provide
for which
him that section
a
eligible.
basis for relief.
242.17(a)
We have held 8 C.F.R. §
appealed
Board
Immi-
mandatory;
to be
if an
fails to
IJ
advise an
gration Appeals, claiming
he
eligi-
that
was
potentially
of relief
alien of
avеnue
ble for relief
212(h),
under
245 and
sections
him,
to
will remand for consid
available
8
1182(h) (1982),
U.S.C.
but the
§§
eligibility for that
eration of the alien’s
then
appeal.
his
BIA dismissed
INS, 756
relief. See Duran
F.2d
to
reopen his
to allow him
case
moved
Cir.1985).
time,
(9th
At the same
1341-42
relief;
eligibility for
the
prove his
are not
clairvoyant;
the
expected
IJs
рetitions
motion. Moran now
denied the
fairly raise the
before them must
record
His
of the BIA’s decisions.
for review
“
himself or some
‘Until the
issue:
[alien]
re-
is
the IJ was
рrincipal contention
that
the
person puts information before
other
not,
to,
him
his
quired
but did
advise
eligibility “appar
such
judge that makes
212(h) of
eligibility for relief
”
ent,”
play.’
duty
this
does not come into
the Act.
INS,
(9th
Bu Roe
Discussion
Cir.1985) (quoting United States v. Barra
1. Under
8 C.F.R.
§
za-Leon,
(9th Cir.1978)).
218, 222
F.2d
respondent
(1988),
“inform the
an IJ must
Duran and Bu Roe were
fairly
clear-cut.
deportation hearing]
of his
[in
former,
In the
the
potential
alien’s
eli-
any
the
apply
benefits
gibility for
relief was disclosed in the
deportation]
enumerated
relief
[of
Duran,
provides, under limited circumstanc certain spоuse, child parent he or es, excludability. waiver of Under sec citizen, record disclosed but the of a U.S. 212(h), is to relief if: tion the alien entitled Moran was аdmitted (1) parent spouse, is the or child of he visa, that, meaning at the an IR-1 under resident; U.S. citizen lawful he an Immediate entry, time (2) result Only U.S. Relative per- citizen оr lawful hardship to the U.S. citi- parents and children U.S. spouses, (3) parent; spouse, resident child or manent un- immediate relatives zens are considered сontrary the alien’s admission would immigration laws. 8 U.S.C. the the der welfare, security safety or to the national 1151(b) (1982). Thus, entry un- Moran’s States; of the United likely quite it IR-1 visa made dеr an in the General exercises discretion requirement for relief he met threshold favor. alien’s require the threshold Moran meets argues that this is not sufficient He relief: has been ment for IJ’s under sec- his arrival citizen since married to U.S. that, as Du- 242.17(a). tion It contends years ago; is also States ten ran, the alien’s еligibility as with the to at least one benefit of hindsight and forceful requirement by appellate must be more merely than counsel. Neverthe- less, we likely, beliеve it must this is fully precisely established type situation that Indeed, section 242.17(a) record. addresses, INS contends that one where the alien’s eligibility for required Moran was relief to show that he met suggested, but not clearly disclosed, by requirements first two of section record. It is in this situation that the IJ’s —that his wife and children were U.S. сiti- expert attention to the particular facts of a zens and that would cause alien’s case can make the difference be- them extrеme hardship. tween pursuing an available avenue of re- We do not read the so missing altogether. lief and it While this grudgingly. obviously Section places significant already burden on over- *4 prompt meant to help the IJ to an Immigration Judges, burdened it is a bur- explore legal might avenues of relief that clearly den contemplated by to him or attorney. By promulgated by General.2 definition, this will involve situations where Conclusion the alien does not have the wherewithal to grant petition In No. complete make a showing of eligibility. and remand for consideration of review “apparent We read the eligibility” standard petitioner’s claim under section No. of 8 C.F.R. to mean that where as moot. are 89-7C010 dismissed We record, fairly by an reviewed individual petitioner’s informed that second motion to intimately iswho familiar with the immi reopen currently the BIA. before We gration laws—as IJs no doubt are—raises a stay order a until possibility rеasonable judi- has exhausted all administrative and may the IJ must ad cial remedies. possibility give vise the alien of this and Judge, opportunity concurring: him the develop the issue. parties’ Given the request stay entered lawfully these That proceedings put pending should have consideration immigrant an country as BIA sеcond motion have to re- that he notice IJ on open, I would defer ruling until the BIA a U.S. relative immediate However, has acted. I concur in legal оpin- all, few avenues are, after There ion of the court. peti to someone immigration available involve do not tioner’s along these inquiry rеlative. immediate visa; a the IR-1 have revealed lines Evelyn SILVERA; Stephen Silvera, E. dis have questions would additional few Plaintiffs-Appellants, to this came closed citizen a U.S. marriage to The MUTUAL LIFE INS. COMPANY OF and to her married still that he was and YORK; Nido, NEW Aurora and Does 1 marriage. children of citizen had U.S. Defendants-Appelleеs. No. 88-2594. our We are mindful that United States Court diffi important discharge an Judges that are conditions cult doubt, for April 5, Submitted We have ideal. less than suggest failure to еxample, that the IJ’s merely an to Moran was much clearer oversight, one that
2. Because we petition resolve the on these Quite tion for сlearly, review. grounds, we need not consider Moran’s other contemplated that permitted the alien would be arguments petition and dismiss his for review of pursue IJ, showing factual before the where (No. reopen 89-70010) the motion to as moot. he can present call witnesses and his own live say We also need not much about the INS’s testimony. determining In matters such as that remand peti- for a as to would cause extreme hard- eligibility tioner’s is futile ship, procedure the abbreviated in a motion to rejected because the ing prima facie show- reopen before simply the BIA is not a substitute. presenting peti- made in