IGE

Interim Decision #3230




                               MATTER OF IGE
                           In Deportation Proceedings

                                     A-27178229
                                     A-27594794

                   Decided by Board September 16, 1994

(1) Where an alien alleges in a motion that extreme hardship will be suffered by his
  United States citizen child were the child to remain in the United States upon his
  parent's deportation, the claim will not be given significant weight absent an affidavit
  from the parent stating that it is his intention that the child remain in this country,
  accompanied by evidence demonstrating that reasonable provisions will be made for
  the child's care and support.
(2) Assuming a United States citizen child would not suffer extreme hardship if he
  accompanies his parent abroad, any hardship the child might face if left in the United
  States is the result of parental choice, not of the parent's deportation.

CHARGE:
Orden Act of 1952—Sec. 241(a)(2) (

(a)(2)]—Nonimmigrant—remained
                     longer than permitted (both respondents)
ON BEHALF OF RESPONDENTS:                             ON BEHALF OF SERVICE:
 Lee J. Teran, Esquire                                 Lawrence J. Hadfield
  2311 North Flores                                    Assistant District
  San Antonio, Texas 78212                               Counsel

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members; Holmes,
    Alternate Board Member


                           CASE HISTORY
   In a decision dated July 13, 1987, an immigration judge found the
respondents deportable on their own admissions under section
241(a)(2) of the Immigration and Nationality Act, 

(a)(2) (1982), as nonimmigrants who remained longer than
permitted. The immigration judge further denied the male respondent's applications for asylum and withholding of deportation to
Nigeria under sections 208(a) and 243(h) of the Act, 8 U.S.0
§§ 1158(a) and 1253(h) (1982). On October 5, 1992, the respondents'
appeal was dismissed and the male respondent's motion to remand to

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apply for suspension of deportation under section 244(a)(1) of the Act,

(a)(1) (1988), was denied.
   In an order dated May 21, 1993, the United States Court of Appeals
for the Fifth Circuit affirmed the denial of asylum and withholding of
deportation to the male respondent but remanded the case to the
Board for consideration of the issue of hardship to the United States
citizen child, should he remain in the United States without his
parents. Ige v. INS, 

 (5th Cir. 1993). On September 21,
 1993, the female respondent filed a motion to reopen to apply for
suspension of deportation with supporting documents. Her motion is
consolidated with that of the male respondent. Both motions will be
denied.
                      FACTUAL BACKGROUND
   The respondents are a 44-year-old male native and citizen of
Nigeria and his 34-year-old wife, also a native and citizen of Nigeria,
who entered the United States as nonimmigrant visitors on November
3, 1983, and August 1 R, 1985, respectively. They were married in
Nigeria in August 1979. The male respondent has lived in the United
States for 10 years. His mother was a school teacher and his father was
a bank manager. His mother and seven brothers and five sisters reside
in Nigeria. He graduated from a 2-year college there and taught school
and worked in the Nigerian Department of Urban Planning. The
female respondent has now lived here for 9 years. Her mother, a
brother, and a sister live in Nigeria. The respondents both work for
Tellabs Texas, Inc. They have three children, the two youngest of
whom are United States citizens. Their daughter, Abayome, lives with
her grandmother in Nigeria and is now 12 years old. Their older son is
now 7 years old. The third child, a 1-year-old boy, was born since our
1992 order and is apparently in good health. We will take any potential
hardship to either or both United States citizen children into account.
   REQUIREMENTS FOR SUSPENSION OF DEPORTATION
   In order to establish eligibility for section 244(a)(1) relief, an alien
must prove that he has been physically present in the United States for
the 7 years immediately preceding his application, that he has been a
person of good moral character for the same period, and that his
deportation will result in extreme hardship to himself or to his United
States citizen or lawful permanent resident spouse, child, or parent.
The alien carries the burden of demonstrating both that he is
statutorily eligible for relief and that he merits a favorable exercise of
discretion. 

(e) (1994); Osuchulcwu v. INS, 

 (5th Cir. 1984); Israel v. INS, 

 (9th Cir. 1 983), cert.
denied, 

 (1984); Marcello v. INS, 

 (5th
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Cir.), cert. denied, 

 (1983); Chadha v. INS, 

 (9th Cir. 1980), affd, 

 (1983); Villena v. INS, 

 (9th Cir. 1980) (en bane).
  The phrase "extreme hardship" is not a definable term of fixed and
inflexible content or meaning. The elements required to establish
 extreme hardship are dependent upon the facts and circumstances
 peculiar to each case. See Matter of Chumpitazi, 

 (BIA 1978); Matter of Kim, 

 (BIA 1974); Matter of
 Sangster, 

 (BIA 1965); see also, e.g., Jara-Navarrete v.
INS, 

 (9th Cir. 1987); Zavala-Bonilla v. INS, 

 (9th Cir. 1984); Ramos v. INS, 

 (5th Ch.. 1983).
    The Supreme Court has held that a narrow interpretation of
extreme hardship is consistent with the exceptional nature of the
 suspension remedy. INS v. Jong Ha Wang, 

 (1981); see
 also Hernandez-Cordero v. United States INS, 

 (5th Cir.
 1987). Factors relevant to the issue of extreme hardship include the
alien's age; the length of his residence in the United States; his family
ties in the United States and abroad; his health; the economic and
political conditions in the country to which he may be returned; his
fmancial status, business, or occupation; the possibility of other means
of adjustment of status; his immigration history; and his position in
the community. See Her-nandes -Patino v. INS, 

 (7th Cir.
 1987); Tara-Navarrete v. INS, supra; Matter of Gibson, 

(BIA 1976); Matter of Uy, 

 (BIA 1965). Relevant
factors, though not extreme in themselves, must be considered in the
aggregate in determining whether extreme hardship exists. See, e.g.,
Hernandez-Patino v. INS, supra; Hernandez-Corder° v. United States
INS, supra; Ramirez-Durazo v. INS, 

 (9th Cir. 1986);
Ravancho v. INS, 

 (3d Cir. 1981).
    While political and economic conditions in an alien's homeland are
relevant, they do not justify a grant of relief unless other factors such
as advanced age or severe illness combine with economic detriment to
make deportation extremely hard on the alien or his qualifying
relatives. Matter of Anderson, 

 (BIA 1978); see also,
      Hernandez-Patino v. INS, supra; Diaz-Salazar v. INS, 

 (7th Cir.), cert. denied, 

 (1983); Ramos v. INS,
supra. Economic detriment in the absence of other substantial equities
is not extreme hardship. Matter of Sangster, supra; see also, e.g.,
Ramirez-Durazo v. INS, supra; Bueno-Carrillo v. Landon, 

 (7th Cir. 1982); Carnally-Munoz v. United States INS, 

 (9th Cir. 1980). Even a significant reduction in the standard of
living is not by itself a ground for relief. Ramirez -Durazo v. INS, supra;
Santana-Figueroa v. INS, 

 (9th Cir. 1981). The loss of a
job and the concomitant financial loss incurred does not rise to the

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level of extreme hardship. Marquez-Medina v. INS, 

 (7th
Cir. 1985); Moore v. INS, 

 (1st Cir. 1983); Matter of
Chumpitazi, supra. Similarly, the readjustment of an alien to life in his
native country after having spent a number of years in the United
States is not the type of hardship that is characterized as extreme, since
similar hardship is suffered by most aliens who have spent time
abroad. See Matter of Chumpitazi, supra; see also Ramirez-Durazo v.
INS, supra; Moore v. INS, supra; Carnalla-Munoz v. United States INS,
supra; Pelaez v. INS, 

 (5th Cir.), cert. denied, 

(1975).
   The fact that an alien has a United States citizen child does not of
itself justify suspension of deportation. See Israel v. INS, supra-, Diaz-Salazar v. INS, supra; see also Bueno-Carrillo v. 

 Balani
v. INS, 

 (6th Cir. 1982); Ayala-Flores v. INS, 

 (6th Cir. 1981); Banks v. INS, 

 (9th Cir. 1979);
Davidson v. INS, 

 (9th Cir. 1977); Matter of Kim, supra.
An alien illegally in the United States does not gain a favored status by
the birth of a child in this country. Ramirez -Durazo v. INS, supra;
Marquez-Medina v. INS, supra; Bueno-Carillo v. 

 Even
though the child may face difficulties adjusting to life in his parent's
homeland, these problems do not materially differ from those
encountered by other children who relocate with their parents,
especially at a young age. Marquez-Medina v. INS, supra. The fact that
economic and educational opportunities for the child are better in the
United States than in the alien's homeland does not establish extreme
hardship. Matter of Kim, supra; see also Ramirez-Durazo v. INS, supra
(stating that the disadvantage of reduced educational opportunities is
insufficient to constitute extreme hardship). Finally, the fact that
medical facilities in the alien's homeland may not be as good as they
are in this country does not establish extreme hardship to the child.
Matter of Correa, 

 (BIA 1984).
      REQUIREMENTS FOR A MOTION TO REOPEN OR
                               REMAND
    A motion to reopen must, among other things, state the new facts to
be considered at the reopened hearing and must be supported by
affidavits or other evidence. 

(a), 103.5, 242.22 (1994).
Such a motion may not be granted unless the evidence sought to be
offered is material and was not available and could not have been
discovered or presented at the former hearing. 

, 242.22
(1994). An alien must establish prima facie eligibility for the relief
sought before a motion to reopen will be granted. See, e.g., Reyes Arias
v. INS, 

 (D.C. Cir. 1989); Platero-Reymundo v. INS, 

 (9th Cir. 1987); Bahramnia v. United States INS, 

Interim Decision #3230

 1243 (5th Cir.), cert. denied, 

 (1986); Yousif v. INS, 

 (6th Cir. 1986); Matter of Ruiz, 

 (BIA 1989);
Matter of Barrera, 

 (BIA 1989); Matter of Egbunine,
 

 (BIA 1987); see also INS v. Abudu, 

(1988); INS v. Jong Ha 

 The Board has discretion to deny
a motion to reopen even if the alien has made out a prima facie case
for relief. INS v. Doherty, 

, (1992); INS v. 

    In INS v. 

 the Supreme Court addressed the issue of
the standard of review that must be applied to motions for reopening
of deportation proceedings. The Court opined that motions to reopen
in the administrative context are analogous to motions for a new trial
in a criminal case on the basis of newly discovered evidence, where the
moving party bears a heavy burden before prevailing. The Court stated
that in both contexts there is a strong public interest in bringing
litigation to a close as promptly as is consistent with a fair hearing and
adjudication of facts, and that not all ambiguities in the factual
averments must be resolved in a movant's favor. The Court went on to
recognize the special administrative, judicial, and sometimes political
considerations in the immigration law context, where giving deference
to decisions on petitions for reopening or reconsideration apply with
even greater force. See also Men Keng Chang v. Jiugni, 

(5th Cm 1982); Aguilar v. INS, 

 (5th Cir. 1981); Faddah v.
INS, 

 (5th Cir. 1977).
   Where, as in the instant case, an appeal is pending and the alien
seeks a remand of the record in order to request a new form of relief,
the requirements for a motion to remand are for all practical purposes
the same as those for a motion to reopen. Rodriguez v. INS, 

 (9th Cir. 1987).
  FINDINGS OF LAW AND FACT ON RECONSIDERATION
  We previously considered and rejected the claims of the male
respondent that his deportation to Nigeria would cause extreme
hardship to himself or to his older United States citizen son, if he were
to accompany his father there. At the time of our decision the child
was 5 years of age. We reviewed the facts set forth in the application
and found that the child could adjust to a new culture, as he is young
and healthy, was born to educated parents, and speaks English, one of
the languages commonly spoken in Nigeria.
   The Fifth Circuit remanded the case to the Board to consider the
effect of the following statement in the male respondent's affidavit: "If
my wife and I were sent back to Nigeria our son would suffer an
extraordinary hardship If he was to stay in the United States and be
separated from us. We are a close family; we spend all our time either
at work, or together." (Emphasis added.) On remand, the respondents

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have submitted a letter from their older son's first grade teacher
praising his academic and social adjustment and three letters from
friends or co-workers commending Mr. Ige's character and industriousness.
   We have reviewed the record and the recent submissions on remand
and again conclude that the male respondent has not made a prima
facie showing of extreme hardship to himself or to a qualifying relative
if he returns to Nigeria. The success of his older son in first grade and
the recent birth of a healthy baby boy does not alter our determination
that the male respondent has failed to show that either he or his
children will suffer extreme hardship upon going to Nigeria.
   As previously noted, the male respondent bears the burden of
demonstrating that he is eligible for suspension of deportation and that
relief should be granted in the exercise of discretion. Onyia v. INS, 

 (8th Cir. 1994); Osuchukwu v. INS, supra. In a case such as
the one before us, the Board must make both a factual and a legal
determination.
   Where an alien alleges that extreme hardship would be suffered by
his United States citizen child were the child to remain in this country
upon his parent's deportation, the Board will not give such a claim
significant weight based on either the mere assertion that the child
would remain here or an indirect reference to such a possibility. The
claim that the child will remain in the United States can easily be
made for purposes of litigation, but most parents would not carry out
such an alleged plan in reality. Therefore we will require, at a
minimum, an affidavit from the parent or parents stating that it is
their intention that the child remain in this country, accompanied by
evidence demonstrating that reasonable provisions will be made for
the child's care and support (such as staying with a relative or in a
boarding school). See INS v. Jong Ha 

 (stating that
the alien must support by affidavit or evidentiary material the
particular facts claimed); 

(a) (1994). We note that the
respondents in this case have not asserted any intention to leave their
child here in an affidavit, nor have they explained how such a plan
could reasonably be carried out.
   Moreover, as a matter of law, we consider the critical issue in
determining an alien's eligibility for suspension to be whether a child
would suffer extreme hardship if he accompanied his parent abroad. If,
as in this case, no hardship would ensue, then the fact that the child
might face hardship if left in the United States would be the result of
parental choice, not the parent's deportation.
   As noted above, it has long been held that the birth of a United
States citizen child does not give the child's parents the right to reside
in this country. However, if a parent's eligibility for suspension of
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deportation could be established by demonstrating that an infant or
unemancipated child abandoned in the United States, would face
extreme hardship, then the birth of a United States citizen child or the
presence of a lawful permanent resident child would likely render any
alien parent who had been in the United States for 7 years eligible for
suspension, even if the child would not face extreme hardship abroad.
The younger the child, the more forceful the argument for extreme
hardship, since an infant unnecessarily abandoned by his parents in
the United States would almost always face extreme hardship. It is the
Board's view that Congress did not intend section 244(a)(1) of the Act
to be interpreted in this manner. Consequently, absent proof of
extreme hardship to a child if he returns to his parents' native country
with them, we will generally consider the decision to leave the child in
the United States to be a matter of personal choice. See Lui v. United
States Dept. of Justice, 

 (8th Cir. 1994).
   In this case, if the male respondent believes it would be an
"extraordinary hardship" for his children to remain here, he should by
all means take them with him. He has presented no good reason for
leaving a small child here, nor shown any reasonable means to do so.
Children of a tender age ordinarily desire to be with their parents.
Furthermore, it is generally preferable for children to be brought up by
their parents. In fact, we are concerned that the emotional trauma
imposed on the older child by the threat to leave him here alone, in the
hope that his parents would thereby obtain legal status in the United
States, is more damaging than anything that could happen to him in
Nigeria.
   We note in this regard that the children could be united with their
sister and other relatives in the extended family in Nigeria. Although
the male respondent claims that he is not in contact with his relatives,
he has offered no evidence to show why a relationship could not be
reestablished. Moreover, the female respondent has indicated that she
does hear occasionally from her mother.
   We have on occasion granted suspension of deportation to aliens on
account of hardship to their United States citizen or lawful permanent
resident children, rather than place the parents in the position of
deciding whether to leave the child in the United States. In one case, a
child who had a genetic condition was unable to take medication for a
disease which was endemic in his parents' native country. In another
situation, a child would have been unable to practice his religion in his
parents' homeland. However, these examples demonstrate the extreme
hardship a child would suffer upon going with his parents to their
native country. The hardship claimed here is created by the parents
themselves.
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                        MOTION TO REOPEN
   The female respondent's motion to reopen to apply for suspension
will also be denied. She has been in the United States just 2 years more
than the 7 required years. She is young and in good health and has
employment skills, having attended a teachers' college for 2 years in
Nigeria and taught school there. Currently she is working in the United
States in an electronics firm. Thus her assertion that she could not be
employed in Nigeria is unsupported. She claims a loss of pension
benefits, but this is an economic loss normally attendant upon
deportation. Marquez-Medina v. INS, supra, at 676.
   The female respondent mentions fear of persecution, but the male
respondent's persecution claim was considered and denied previously,
and our decision was upheld, in part, because his testimony lacked
credibility. She has no relatives in the United States other than her
immediate family, who will presumably also be going with her. Her
statement that she would be "forced" to leave her children here is
unproven and unexplained. She has a young daughter in Nigeria with
whom she will undoubtedly be happily reunited. The record reflects
that she and the male respondent attended college in Nigeria and that
she has no qualms about allowing her daughter to grow up there. She
has therefore failed to make a prima facie showing that her return to
Nigeria would result in extreme hardship to her or to her United States
citizen children.
   Accordingly, upon reconsideration, the male respondent's motion to
remand to apply for suspension of deportation will be denied. The
female respondent's motion to> reopen to apply for suspension of
deportation will also be denied.
   ORDER:         Upon reconsideration, the male respondent's motion
to remand to apply for suspension of deportation under section
244(a)(1) of the Act is denied.
   FURTHER ORDER:              The female respondent's motion to
reopen to apply for suspension of deportation under section 244(a)(1)
of the Act is denied.




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