Interim Decision #2329
MATTER OF PiCAOTT
In Deportation Proceedings,
A-14872513
A-14343531
Pecided by Board October'30; 1974
Respondents are natives of Antigua and citizens of the United Kingdoni and Colonies, as
such they come within the purview of section 101(b)(5) of the Immigration and Nationality Act. Under section 244(0(3) of the Act they are not eligible for suspension of
deportation unless they can establish that they are ineligthle to obtain special immigrant
yips. Such aliens are, by definition in section 101(a)(27) of the Act, not eligible for
special immigrant visas, therethre they are eligible for the suspension they seek upon
the establishing of the requisite physiCal presence and extreme hardship requirements.
CHARGE:
Order: Act of 1952 — Section 241(a)(2) [8 U.S.C. 1251(a)(2)3 —Nonhumigrants remained
longer. ,
ON BEHALF OF RESPONDENTS: ON BEHALF OF SERVICE:
Clara Binder, Esquire , Allan A. Shader
401 Broadway Trial Attorney
New York, New York 10013
In decisions dated August 12, 1971, the immigration judge found both
respondents deportable as charged and granted them the privilege of
voluntary departure. The proceedings were subsequently reopened to
allow the respondents to apply for suspension of ,deportation under
section 244(a)(1) of the Immigration and Nationality Act. In a decision
dated May 3, 1974, the, immigration judge granted suspension of deportation to both respondents:The Service has appealed from that decision.
The appeal will be dismissed.
DISCUSSION AS TO DEPORTABILITY: At their original hearing,
the respondents conceded deportability. The only issue on this appeal
involves the immigration judge's grant of suspension of deportation.
DISCUSSION AS TO ELIGIBILITY FOR SUSPENSION OF DEPORTATION: The respondents are both natives of Antigua and citizens
of the United Kingdom and Colonies. The trial attornfix argues that the
respondents are ineligible for suspension of deportation under the pro-
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Interim Decision #2329
visions of section 244(0(3) of the Act because they are natives of an
"adjacent island." Section 244(0(3) provides that suspension shall not be
available to an alien who:
is a native of any country contiguous to the United States or of any adjacent island
named in seztion 101(b)(5): Provided, That the Attorney General may in his discretion
agree to the granting of suspension of deportation to an alien specified in clause (3) of
this subsecton if such alien establishes to the satisfaction of the Attorney General that
he is ineligi5le to obtain a special immigrant visa. (Emphasis supplied.) '
The trial attorney has cited Matter of Longsworth, 13 I. & N. Dec. 225
(BIA 1969), in support of his position. In Longsworth we held that
British Honduras was an "adjacent island" within the meaning of section
101(b)(5) of the Act, and that therefore a native of British Honduras was
ineligible for suspension of deportation under section 244(0(3). We also
denied counsel's request that the case be remanded to the immigration
judge for a determination of whether the respondent was unable to
obtain an immigration visa because he lacked the labor clearance required by section 212(a)(14) of the Act. We did not specifically address
the issue of whether a native of a colony of a foreign state is a person
who is "ineligible to obtain a special immigrant visa," and therefore
eligible for suspension of deportation under the proviso to section 244
(f)(3).
The General Counsel of the Service has submitted a memorandum
setting forth the current Service view regarding the eligibility for
suspension of deportation of aliens such as the respondents. We agree
with the General Counsel's statement that a native of an "adjacent
island" which is a colony of a foreign state is eligible for suspension of
deportation under the proviso to section 244(0(3) for the reason that
such an alien, by definition, is not eligible for a special immigrant visa.
Section 101(a)(27) of the Immigration and Nationality Act.
We recede from the result reached in Matter of Longswarth, supra,
which indicates that a native of an "adjacent island" which is a colony of
a foreign state is ineligible for suspension of -deportation. Accordingly,
we conclude thit the respondents are not ineligible for suspension of
deportation by reason of section 244(0(3).
Both respondents have met the seven-year physical presence requirement of section 244(a)(1), and both are persons of good moral
character. The remaining questions are whether the respondents' deportation would result in "extreme hardship" to themselves or their
The 1969 Committee Print of the Immigration and Nationality Act for the use of the
Committee on the Judiciary of the House of Representatives used the term "nonquota"
immigrant visa instead of "special" immigrant visa. However, analysis of various changes
Made in the Act shows that within the meaning of section 244(f)(3) the terms "nonquota"
and "special" are synonymous, and we have so held. Mutter of Dzamti,
15 I. & N. Dec.
116 (BIA 1974).
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Interim Decision #2329
United States citizen children, and whether discretion should be exercised in their favor.
The immigration judge found that the male respondent would be
unable to obtain employment in Antigua, that neither of the respondents would be able to provide for their own necessities in Antigua, that
the respondents' minor United States citizen children would suffer
because of the respondents' lack of ability to provide them with proper
food and living facilities in Antigua, and that the school system in
Antigua is fax inferior to that in the United States. The immigration
judge also found that the respondents' younger citizen daughter is
afflicted with rheumatic fever and is under a physician's care, and that
equal medical care is not available in Antigua.
We agree with the immigration judge's conclusion that the respondents have demonstrated that their deportation would result in
"extreme hardship" to themselves and to their United States citizen
children. We also agree with the immigration judge's conclusion that the
respondents merit a favorable exercise of discretion.
The immigration judge's decision was correct. The Service appeal will
be dismissed.
ORDER: The appeal is dismissed.
Further order: The deportation of both respondents is suspended
under the provisions of section 244(a)(1) of the Immigration and Nationality Act, as amended.
Further order: If Congress takes no action adverse to the order
granting suspension of deportation, the proceedings shall be cancelled,
and appropriate action shall be taken pursuant to section 244(d) of the
Immigration and Nationality Act.
Further order: In the event Congress takes action adverse to the
order granting suspension of deportation, these proceedings shall be
reopened upon notice to the respondents.
Warren IL Torrington, Board Member, dissenting:
I respectfully dissent.
It appears that any hardship which the respondents or their children
might suffer by reason of the family's return to Antigua would be purely
economic. Economic hardship is, of course, not the "extreme hardship"
contemplated by Congress when it enacted the present section 244 of
the Immigration and Nationality Act.
Congress has never accepted the theory that minor American-born
children of deportable aliens must, or even should, remain in the United
States, and that living with their deportable parents in their home
country would result in "extreme hardship" to thorn. Any American-born child was born in what we believe to be the greatest country on
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earth. Thus, such a child may indeed be considered to suffer some
hardship of one kind or another the moment it leaves with its parents for
their home• coimtry, in which, by definition, conditions cannot be equal to
those in the United States. That kind of hardship, however, has never
been considered by Congress, the courts, or otherwise, to be the "extreme hardship" required for eligibility for,relief under section 244(a)(1)
of the Act.
One of the respondents' young children was treated for rheumatic
fever. Except for the female-respondent's assertion, there is nothing in
this record to warrant a conclusion that effective treatment for that
disease, if it still exists, will not be available in Antigua.
The respondents are ineligible for the relief of suspension of deportation under Section 244(a)(1) of the Immigration and Nationality Act, as
Amended.
The Service appeal should have been sustained.
•
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