Interim Decision #2818
MATTER OF KIM
In Deportation Proceedings
A-14516808
A-14409745
Decided by Board August 22, .1974
Suspension of deportation under section 244(a)(1) of the Act based on seven years physical
presence in the United States will not be granted on a claim of extreme hardship, where
the only facts presented tended to show better economic and educational opportunities
for the respondent's United States citizen children in the United States than in Korea.
CHARGE:
Order Act or 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2))—Nonimmigrant student,
remained longer than permitted (both respondents).
ON BEHALF OF RESPONDENTS: ON BEHALF OF SERVICE:
Leslie J. Frank and William S. Howell
Bert D. Greenberg. Esquires Trial A ttornay
California Federal Building David L. Iffilhollan
Suite 1800 Appellate Trial Attorney
5670 Wilshire Boulevard
Los Angeles, California 90036
In a decision dated April 27, 1973, the immigration judge found the
respondents deportable as charged, and granted their applications for
suspension of deportation. The Service has appealed from that decision.
The appeal will be sustained, and the record will be remanded to the
immigration judge.
At the hearing, the respondents conceded deportability and applied
for suspension of deportation under section 244(a)(1) of the Immigration
and Nationality Act. Neither of the respondents is within any of the
categories listed in section 244(a)(2) of the Act, each respondent is a
person of good moral character, and each respondent has satisfied the
seven-year physical presence requirement of section 244(a)(1). The sole
issue on appeal is whether the respondents have established the "extreme hardship" which is a requisite for eligibility for suspension of
deportation under section 244(a)(1).
The respondents, husband and wife, are both natives and citizens of
Korea. They both entered the United States as nonimmigrant students,
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and they both remained longer than their authorized stay. The respondents were married in 1966 and are the parents of two United States
citizen children. One child is six and one half years old and the other
child is three years old. The respondents claim that their deportation
would result in extreme hardship to them and to their United States
citizen children.
The respondents base their claim of extreme hardship to themselves
on their alleged inability to find suitable employment if they returned to
Korea. They also testified that if deported they would take their sons
with them Lo Korea. They contend that this would be extreme hardship
on the children because they would. be deprived of the educational and
economic advantages that are available to United States citizens in this
country. The respondents also claim that the oldest child would suffer
hardship because he has not learned to speak Korean.
The immigration judge stated that, he was skeptical of the respondents' claims that they would have great difficulty in securing suitable
employment in Korea. In this respect, he noted that both respondents
have college educations, and that therefore they would both have more
opportunities than the average person in Korea. Moreover, the mere
fact that an alien's economic opportunities in a foreign country may be
somewhat less than they are in the United States is not, by itself,
sufficient to establish the "extreme hardship", required for suspension of
deportation under section 244(a)(1) of the Act. Matter of Kojoory, 12 I.
& N. Dec. 215 (BIA 1967); Matter of Sangster, 11 L & N. Dec. 309 (BIA
1965); Matter of Uy,
11 I. & N. Dec. 159 (BIA 1965). We agree with the
immigration judge's conclusion that the respondents' deportation would
not result in "extreme hardship" to them.
The immigration judge went on to find, however, that the respondents' United States citizen children should be raised in the United
States. He concluded, after considering the rights and interests of the
citizen children, that it would be "extreme hardship" on the children to
take them to Korea. We agree with the Service's contention that this
conclusion is erroneous.
"Extreme hardship" is not a term of fixed and inflexible content or
meaning. The question of whether there is "extreme hardship" depends
upon the facts and circumstances peculiar to each case. Matter of Sangster, supra; Matter of Eiy, supra; Matter of Hwang, 10 I. & N. Dee. 448
(BIA 1964). In the present case, no facts have been presented to show
that the respondents' citizen children would suffer "extreme hardship."
The only "facts" presented in the record are several general statements
by the respondents to the effect that their children would have better
economic and educational opportunities in the United States than in
Korea.
This case does not involve the separation of a family. As the immigra-
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Interim Decision 42318
tion judge pointed out, the children are so young that no claim can be
made that they could not adjust to living in Korea (Tr. p. 50). Nor is
there any evidence that the respondents could not support and educate
the children in Korea.
One of the respondents' children is preschool age, and the other is so
young that the move to Korea would not be a significant disruption of his
educational p:rogram. It is not apparent that the children will lack
educational and economic opportunities in Korea, nor is it evident that
the educational and economic situation in Korea would be such as to
preclude their ever returning to the United States. Both of the respondents were able to obtain college educations in Korea, to learn English,
and to come to the United States and adapt to life here; there is no
reason to believe that their children will not be able to do the same.
Under the circumstances present in this case, we find that the respondents have not shown their deportation would result in "extreme
hardship" to their citizen children. We note that Congress has specifically precluded minor United States citizen children from conferring
preferred immigration status upon their parents under section 201(b) of
the Act.
We will sustain the Service appeal and reverse the immigration
judge's order granting suspension of deportation. The record' will be
remanded to the immigration judge for further proceedings.
ORDER: The Service appeal is sustained, and the order granting
suspension of deportation is reversed.
Further order: The record is remanded to the immigration judge for
whatever further proceedings may be necessary and the entry of an
appropriate order.
Warren R. Torrington, Board Member, concurring:
The dissenting opinion assumes certain facts which simply are not
true. Aliens have never been "compelled, on departing from the United
States, to leave behind their American citizen children." [Emphasis
added.] Such children are not "banished from the country of their birth"
when they join their deportable parents in the parents' home country. I
find particularly uncalled for the dissenter's intimation that the majority
decision may be "based on some notion that there is a Congressional
policy favoring the departure of United States citizen minor children of
deportable aliens." There has, of course, never been, and could never
have been, such a Congressional policy which would be in clear violation
of the Constitution of the United States. On the other hand, the courts
have consistently held that a deportation order entered against the
parents of United States citizen children does not deprive the children of
any Constitutional rights. Application of Amoury, 307 F. Supp. 213
(S.D. N.Y. 1969);Perdidov.INS,
420 F.2d 1179 (C.A. 5, 1969);Dayao v.
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Staley, 303 F. Supp. 16 (S.D. Tex. 1969); affd
424 F.2d 1131 (C.A. 5,
1970); and Faustino v. INS,
302 F. Supp. 212 (S.D.N.Y. 1969). This
view was also shared by the writer of the present dissenting opinion in
Matter of Lopez,
14 I. & N. Dec. 424 (BIA 1973), in which the Board
stated, inter alia:
"Two grounds for appeal are set forth in the notice of appeal. The first is that the
respondents have a minor child born in the United States whose constitutionally
guaranteed rights to parental care would be violated if the respondents are required to
depart. The short answer is that whatever rights the child may have under the
Constitution do not authorize the respondents to remain here in violation of the immigration laws. The respondents have it within their own power to avoid the alleged
hardship that would befall the child on separation by taking the child with them when
they depart."
The statute (section 244(a)(1) of the Immigration and Nationality Act)
has been on the books for many years. Congress knew what it meant.
We have known what it meant. The novel theories advanced by the
dissenters would now expand grants of suspension of deportation in
previously unheard-of ways.
Any American-born child was born in what we believe to be the
greatest country on 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 country, 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.
AU but one of the cases cited in the dissenting opinion have nothing to
do with the provisions of section 244(a)(1) of the Immigration and
Nationality Act, the only statute here involved. Young v. INS,
459 F.2d
104 (C.A. 9, 1972), does not support the novel notions presented in the
dissenting opinion.
I concur in the majority opinion.
Maurice A. Roberts, Chairman, dissenting:
I respectfully dissent. I would dismiss the Service appeal or, in the
alternative, would on remand give the respondents an opportunity to
present additional evidence on the issue of extreme hardship to their
children.
The respondents are the parents of two United States citizen children; born in this country and now aged respectively six and a half and
three years old. The immigration judge found that respondents' deportation would result in extreme hardship to the children. Since the
statutory provisions for suspension of deportation are remedial in nature, they should not be strictly and technically construed, Wadman v.
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INS, 329 F.2d 812 (C.A. 9, 1964). I would not disturb the immigration
judge's finding of extreme hardship.
If the respondents were compelled, on departing from the United
States, to leave behind their American citizen children, it is hardly
conceivable that their forced separation would not result in extreme
hardship to ean.h. In a suspension of deportation setting, the courts have
noted the hardship involved in breaking up ,close family ties, Yong v.
INS, 459 F.2e. 1004 (C.A. 9, 1972).
The mere fact that the respondents will take their children to Korea
with them anc that the children are young enough to adjust to living in
Korea does not eliminate extreme hardship to the children in being thus
banished from the country of their birth. Merely because such a child
may not be deprived of the loving care of his parents does not mean that
other significg.nt deprivations will not ensue. The possibilities of extreme hardship to a United States citizen child under these circumstances are numerous. Depending on the circumstances prevailing
in the foreign ,country, the child may be deprived of the educational and
economic opportunities, the health services and other benefits readily
available to him in this country. He may be deprived of the great democratic freedoms which are ours. If brought up in a home, such as
respondents', where English is not the usual language, he is likely to
grow up without a knowledge of our language; or, if he does learn to
speak it, is likely to do so with a foreign accent. On becoming aui juris
and returning to this country, as is his right as a United States citizen,
he may find Cut his absence from his homeland during his formative
years has placed him at a great disadvantage economically, educationally, socially and health-wise. In my estimation, elements such as these
can add up to the "extreme hardship" Congress designed section 244 to
ameliorate.
The majority opinion' notes (p. 4) "that Congress has specifically
precluded minor United States citizen children from conferring preferred immigration status upon their parents under section 201(b) of the
Act." That is undoubtedly true; but it has no relevance to this ease,
which arises under an entirely different provision of the Act. If, by this
reference, the majority opinion indicates that its decision is based on
some notion that there is a Congressional policy favoring the departure
of United States citizen minor children of deportable aliens, I must
demur.
Insofar as •2oncerns a Congressional policy with respect to minor
American-horn children of deportable alien parents, I know of nothing
which evinces a generalized Congressional desire that such children
should leave this country. A child born in the United States of alien
parents is as much a citizen as one horn to citizen parents and has the
same legal right to remain here. It is true that in the provison to section
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201(b) of the Act, Congress declined to confer immediate relative status
on the alien parents of minor children: Without going into the legislative
history of that provision, it seems clear that Congress did not intend to
encourage aliens to come here illegally by giving then quota exemption
if they managed to beget a child here before they could be deported. The
courts have held that this discrimination with respect to the alien
parents of minor citizen children does not impair the latter's rights
under the Constitution.
It by no means follows that section 201(b)'s proviso evinces a
generalized Congressional policy that minor American-born children of
deportable aliens should depart under all circumstances. Quite the
contrary, other provisions of the Act set up various forms of relief from
exclusion or deportation, most of which are discretionary- but one of
which is mandatory, for alien parents of American children, who by
definition must be minors.' See, e.g., sections 212(e), 241(1), and 244(a).
Thus, in construing section 241(f) to apply in a situation where the
citizen child was born ,here not long after the alien's arrival, the courts
have stressed the underlying Congressional policy of uniting families,
INS v. Errico, 385 U.S. 214 (1966); Godoy v. Rosenberg,
415 F.2d 1266
(C.A. 9, 1969).
Section 244(a) of the Act authorizes discretionary suspension of deportation to an alien parent who meets certain eligibility requirements
and whose deportation would cause extreme hardship to his citizen
child. Since the latter is by definition a minor, this provision seems
clearly incompatible with the notion that there is a general Congressional policy that deportable alien parents of minor American-born
children should depart and take their American-born children with
them.
Under section 244(a), the alien parent seeking suspension must show
at least seven years' continuous physical presence here in addition to the
"extreme hardship" requirement. This is a far cry from the situation
Congress sought to guard against in enacting the proviso to section
201(b). The Congressional policy underlying its deliberate failure to
provide preferential treatment in the issuance of visas to alien parents
of minor United States citizen children can have little to do with the
type of situation presented in section 244(a) cases, which involve both
long residence here and extreme hardship, neither of which is relevant
under section 201(b).
In Wadman v. INS, supra, the court enunciated an approach to
suspension cases which should guide us here. The court stated, 329 F.2d
at 816-817:
Section 101(b)(1) states that the term "child" means an unmarried person under
twenty-one years of age.
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Interim Derision #2318
In construing §244 we are in an area in which strict construction is peculiarly
inappropriata. The apparent purpose of the grant of discretion to the Attorney General
is to enable that officer to ameliorate hardship and injustice which otherwise would
result from a strict and technical application of the law. A strict and technical construction of the language in which this grant of discretion is couched could frustrate its
purpose. A liberal construction would not open the door to suspension of deportation in
cases of doubtful merit. It would simply tend to increase the scope of the Attorney
General's reiriew and thus his power to act in amelioration of hardship.
In keeping with the foregoing rule of construction, I would not disturb
the immigration judge's finding of extreme hardship to the children
here.
The majo:Ity decision reverses the immigration judge's grant of suspension of deportation and remands "for whatever further proceedings
may be nece ssary and the entry of an appropriate order." I assume this
contemplates that the immigration judge will now give the respondents
an opportunity to apply for voluntary departure in lieu of deportation.
On remand, I think the respondents should also have the oppeirtunity to
present further evidence to prove that their deportation will result in
extreme hardship to their.children.
Louisa Wilson, Member, dissenting!
I concur in the foregoing dissenting opinion.
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