Interim Decision #1319
Maa-rna ar HWAN-G
In DEPORTATION Proceedings
A-8902909
Decided by Board February 4,1964
Respondent, A. 32 -year-old unmarried native of China, who has been in the United
States since his entry in 1055 as a student and who has no one here who would
be adversely affected by his departure, has not established that his deportation
to Pormous would, within the meaning of section 244(a) (1), Immigration and
Nationality Act, us amended, result in "extreme hardship" on the basis of
possible unavailability of suitable employment because of his nonuse of the
Chinese language and his lack of a college degree or of a trade skill.
Oureaas:
Order: Act of 1952—Section 241(a) (2) [8 U.S.C. 1251(a) (2)3—Nonimmigrant—Remained longer.
The respondent, a native of China, appeals from an order entered
by the special inquiry officer on October 7, 1963, granting him the
privilege of voluntary departure in lieu of deporation as an alien who
after entry as a nonimmigrant student remained longer than permitted. Exceptions have been taken to the denial of the respondent's
application for suspension of deportation under section 944(a) (1) of
the Immigration and Nationality Act as amended by the Act of
October 24, 1962 (Public Law 87-885 (8 U.S.C. 1254(a) (1) )).
The respondent, male, 32 years of age, unmarried, last entered the
United States at San Pedro, California, on or about September 22,
1955. He was admitted as a nonimmigrant student and was authorized
to remain in the United States until January 29, 1962. He has remained in the United States beyond the time for which he was admitted
and he concedes deportability on the charge set forth in the order to
show cause.
The appeal before us is directed to the denial of the respondent's
application for suspension of deportation, filed on January 21, 1963,
pursuant to the provisions of section 244(a) (1) of the Immigration.
and Nationality Act as amended by the Act of October 24, 1902
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(Public Law 87-885). The special inquiry officer after due consideration of the respondent's application finds that he meets the following
statutory requirements of the amended statute. The respondent has
been physically present in the United States for a continuous period
of not less than seven years. The respondent has been a person of
good moral character for the statutory period of seven years. The
respondent is not deportable on a charge contemplated within section
244(a) (2) of the Immigration and Nationality Act as amended.
The special inquiry officer concludes, however, that the respondent's
deportation would not result in "extreme hardship," a. term used for
the first time in the amended version of section 244(a) (1) (8apra).
Prior to the amendment the degree of hardship was described in all
five paragraphs of section 244(a) as "exceptional and extremely unusual." This degree of hardship was retained in paragraph (2) of
the amended version of section 244(a) which relates to suspending
the deportation of aliens deportable as undesirables, subversives and
criminals.
The principal issue presented on appeal is whether the special inquiry officer erred in concluding that the respondent is ineligible for
the relief provided by section 244(a) (1) because his deportation does
not meet the test of "extreme hardship" as that term is used in the
amended statute. Among the reasons assigned by the special inquiry
officer in support of his conclusion are the following. The respondent
is not married and there are no members of his immediate family
residing in the United States. There is no one in the United States
dependent upon him for support.
The respondent's widowed mother and one brother reside on Formosa. His brother is employed by the Chinese Nationalist Government. His mother receives a pension from the Nationalist Government
based upon her husband's service in the Control Yuan. The respondent
testified that he occasionally sends his widowed mother a few dollars.
He also testified that when he entered the United States as a student
he intended to return. to Formosa upon the completion of his education
(1). 13 )-
The respondent last attended the University of Southern Illinois
in December 1961. During the more than eight years the respondent
has been in the United States he has earned "around a hundred thirtyfive" credit hours (p. 8) and has attended three different colleges.
He testified that he was dropped by the University of Illinois in 1956
or 1957 because of poor grades (p. 8). His record at the University
of Southern Illinois also reflects poor grades (Ex. 4). The respondent
attributes his mediocre scholastic record to his "poor English" (p. 8).
The respondent testified that he is not attending school "because
I haven't got funds to continue my study . . ." (p. 13). During his
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Interim Decision 4t1319
residence in the United States he has had summer employment at
two hotels, a store, and since January of 1962 he has been employed
by the Allied Radio Corporation of Chicago, Illinois, as a stockman.
earning $75 per week (Ex. 2).
Counsel for the respondent maintains that Congress intended to
lessen the degree of hardship required to qualify for suspension of
deportation under paragraph (1) of section 244(a) as amended when
they substituted the word "extreme" for the term "exceptional. and
extremely unusual" in referring to the specified type of hardship
envisaged by the Act of October 24, 1962 (Public Law 87— 5).
Counsel argues that the respondent has met the burden of establishing
his eligibility for the discretionary relief he seeks. Counsel has referred to the following factors in support of the respondent's claim
that his deportation would result in. extreme hardship within the
meaning of section 244(a) (1) as amended:
(it) Deportation of the respondent would prevent him from completing bin
undergraduate college training and his post-graduate work in higher
mathematics. Respondent has already earned 135 hours of college credit.
(b) Respondent has resided in the United States more than seven years;
has become fluent in the English language, and has made a good record
in his studies and in his employment.
(e) If deported, it would be extremely difficult to obtain a visa to return
to the United States bemuse of the limited quota.
(d) Respondent has limited funds and it would be an extreme hardship to
have to return to China to apply and wait for a visa, and then make the
return trip to the United States.
(e) The mamimem use of respondent's college training and anticipated post-graduate work would be found here in the United States where there is
great need for specially trained mathematicians.
(f) Respondent's father died in September 1962 and respondent now contributes to the support of his mother. If respondent were deported, the
availability of suitable employment on Formosa would be doubtful
because of respondent's nonuse of the Chinese language and his lack of
a college degree or of a trade skill. Said factors would probably confine
his employability to that of an unskilled laborer
As originally written Public Law 87885 1 provided relief from
deportation by advancing the cut-off date from June 28, 1940, to December 24, 1952, for all aliens eligible for registry under section 249
of the Immigration and Nationality Act. However, when the legislation was considered in conference it was rewritten to achieve the same
result by suspending deportation. rather than creating a, record of lawful entry. The conferees on the report of the House of Representatives commented that the amendment of section 244 "is designed to
Section 4, Senate Bill 3361, 87th Cong., 2d Bess., 1962.
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achieve the purpose envisaged by the Senate in a modified manner" 2
and in addition would permit Congressional review of the relief
granted aliens by the Attorney General. According to the conferees
from the House of Representatives the proposed language of the
amendment of section 244(a) also envisaged "the showing of (a)
specified type and degree of personal hardship which might occur in
the absence of such relief."'
The personal privation contemplated in a situation characterized
by "extreme hardship" within the meaning of the statute is not a definable term of fixed and inflexible content or meaning. It necessarily
depends upon the facts and circumstances peculiar to each case. We
are concerned with an. alien who was permitted to enter the United
States as a student in 1955 for the purpose of acquiring an education.
His admission for this purpose contemplates his departure from the
United States upon his failure to maintain the status of a. student.
The respondent maintains that his return to the country whence he
came would result in extreme hardship to him despite the fact that he
concedes that he intended to return to Formosa at the time he entered
in 1955. He seeks permanent resident status in order that he may
complete his undergraduate courses and then do post-graduate work
in higher mathematics. His desire in this regard does not appear to
be consistent with his testimony that he does not have sufficient funds
to complete his education. His past record as a student is not in accord
with such an ambitious graduate program. Furthermore, the allegation that he would find here in the United States rather than in Formosa the maximum use of his present training and anticipated post-graduate work in the field of mathematics is not in accord with his
current employment as a stockman.
The evidence in our judgment does not support the respondent's claim
that his return to Formosa would result in extreme hardship to him
financially because suitable employment in Formosa would be doubtful
due to the respondent's nonuse of the Chinese language and his lack
of a college degree or of a. trade skill. The respondent with some 135
semester credit hours should be in a. better competitive position for
employment in Formosa than when he entered the United States in
1955. The claim that nonuse of the Chinese language during his residence in the United States is a, factor which would cause him extreme
hardship upon his return to Formosa is not consistent with the evidence of record that he was a member of Chinese student organizations
at the University of Southern Illinois and the University of Illinois
(Ex. 2) . It is inconceivable that the Chinese language was not spoken
2 The Conferees were referring to the liberalising of section 240 by advancing
the cut-off date.
See p.4029, U.S. Code Cong. & Adm. News, 87th Cong., 2d Sees.
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at the meetings of Chinese student organizations during the five or
more years the respondent attended these institutions.
We do not dispute counsel's argument that Congress intended to
lessen the degree of hardship required to qualify for suspension of
deportation when they amended paragraph (1) of section 244(a) by
Public Law 87-885. The term "extreme hardship," however, admits
of varying degrees of severity. The limits of personal deprivation and
economic detriment contemplated in the term "extreme hardship" -
cannot be 'stated in a hard and fast rule. It is conceivable that the
return of an alien who was admitted as a. foreign student to the country whence he came may result in "extreme hardship" within the meaning of section 244(a) (1), as amended.
Section 244(a) (1) contemplates that within certain limits the Attorney General may exercise his discretion to suspend the deportation
of aliens whose removal from the United States would result in "extreme hardship" to them. We are of the opinion, however, that the
facts and circumstances of respondent's case do not affirmatively establish "extreme hardship" if he returns to Formosa. The-re are no substantial equities in his case except those arising from the fact that
he was admitted as a student and permitted to remain in the United
States for more than the statutory period of seven years required for
eligibility under section 244 (a) (1), as amended. He has no relatives
in the United States who would be adversely affected by his departure.
He, in our judgment, should be in a better position to obtain employment in Formosa than when he entered the -United States. These
factors do not support a finding of "extreme hardship" within the
meaning of section 244(a) (1). The appeal will be dismissed.
ORDER: It is directed that the appeal be and the same is hereby
dismissed. •
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