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Guerra v. Immigration and Naturalization Service

argued submitted san francisco california: April 15, 1993.

LUIS MIGUEL DEL ROSARIO GUERRA, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals. INS No. A27-129-843

Before: Goodwin, Hug and Fletcher, Circuit Judges

MEMORANDUM

Luis Miguel del Rosario Guerra, a citizen of Chile, petitions for review of the Board of Immigration Appeals' ("BIA" or "Board") denial of his motion to reopen his deportation proceedings to allow him to apply for suspension of deportation. 8 C.F.R. §§ 3.2, 3.8; 8 U.S.C. § 1254(a). The Board denied Guerra's notion stating that he had failed to make a prima facie case of eligibility for suspension of deportation because he had not demonstrated that his deportation would result in extreme hardship to his citizen children. 8 U.S.C. § 1254(a)(1). Guerra argues that the BIA failed to consider all the evidence before it and narrowly focused on but one aspect of his claim that extreme hardship would result from his deportation. The Board had jurisdiction under 8 C.F.R. §§ 3.1(b)(2), 242.21. This court's jurisdiction rests on 8 U.S.C. § 1105a(a) (Immigration and Nationality Act). The Board's denial of a motion to reopen is reviewed for abuse of discretion. INS v Rios-Pineda, 471 U.S. 444, 449 (1985); INS v. Jong Ha Wang, 450 U.S. 139, 144-45 (1981) (hereinafter Jong Ha]; Limsico v. INS, 951 F.2d 210, 213 (9th Cir. 1991). Because we find the BIA abused its discretion in failing to consider all the evidence Guerra presented in support of his claim of extreme hardship, we remand to the BIA for its consideration of his motion to reopen and the appended exhibits.

I.

Guerra entered the United States in January 1984 on a student nonimmigrant "F-1" visa. Fearing persecution if he returned to Chile, he did not leave when the visa expired six months later.*fn1 In response to an order to show cause, Guerra conceded deportability but requested asylum and withholding of deportation. The IJ denied relief but granted voluntary departure. Guerra filed a notice of appeal based on the denial of asylum and withholding of deportation. (AR at 53). While his appeal from the IJ's decision was pending, Guerra met the seven-year requirement of continuous physical presence for suspension of deportation. 8 U.S.C. § 1254(a)(1).*fn2 Before the BIA decided the asylum and withholding of deportation claims, Guerra moved to reopen based on his eligibility for alternative relief. Attached to the motion were numerous supporting exhibits (AR at 40, 41-52, 104-22, 124).

Guerra sought to establish that he met all three statutory requirements for relief under the suspension of deportation provisions. To show "extreme hardship," he stressed his close connection to his family and their dependence on his "financial, moral, and emotional support." He also asserted that deportation would cause him "extreme emotional and psychological hardship." (AR at 34-36) The exhibits reflect that he has held a steady job with a janitorial service, has been promoted from gardener to supervisor, and has earned a certificate of recognition for his good work. (AR at 122). A supervisor who has known him since 1984 relates that Guerra works hard, is a "responsible, dedicated and loyal employee," and that he considers him a "giving and loyal friend." (AR at 48). Tax returns indicate that he has paid his taxes and does not depend on state aid. (AR at 104-06, 108-13, 115-16, 118-19). Through his employment Guerra is able to provide health insurance to his family. (AR at 44).

Guerra married his wife in 1990 after they had lived together for several years after she had borne their United States citizen child. His wife is a Peruvian citizen. She has also applied for asylum and meets the residency requirements for suspension of deportation. (AR at 34). Guerra is in the process of adopting his stepson, a United States citizen, six years old at the time Guerra filed for reopening. (AR at 38, 45). He argues that his presence in the family at this time is of great importance. According to the accounts of his wife, friends and associates, Guerra is a loving family man who has been devoted to his two children and has provided for their material needs. (AR at 46, 48, 52). His daughter was four when he applied for suspension of deportation. (AR at 38).

Guerra has been active in the Spanish Speaking Citizen's Foundation since 1984. An associate of the Foundation writes that Guerra has contributed a great deal to the community: "Mr. Guerra is an amicable and simple person that communicates with all the other persons through his good deeds . . . I will greatly appreciate any attention given him for the great help he has given others." (AR at 46-47). As a native Spanish speaker, he assists a Spanish teacher who does not speak Spanish as her first language. (AR at 49). In addition, the record reflects that Guerra has enrolled in English courses at the ELS Language Center approved by the INS. (AR at 120, 124).

In its decision, the BIA affirmed the dismissal of Guerra's asylum and withholding of deportation claims and denied the motion to reopen. Stating that "there is nothing in the record to warrant a discretionary denial of suspension of deportation, and that "no discretionary basis for denial of a motion to reopen" existed, the Board denied the motion to reopen on the ground that Guerra had not made a prima facie case of eligibility for suspension. (AR at 4). In its view, Guerra had failed to demonstrate that "extreme hardship" would result to his children because he "failed to enlighten [the] Board as to [the] specific circumstances of his citizen children which would warrant the suspension of his deportation." (AR at 5).

II.

Under Section 1254(a), a deportable alien who meets the statutory eligibility requirements and persuades an immigration Judge to exercise favorable discretion qualifies for suspension of deportation. Exercising the "broad discretion" vested in it, Rios Pineda, 471 U.S. at 449, the Board may deny a motion to reopen to consider suspension of deportation if the petitioner (1) fails to establish a prima facie case for relief, (2) if he presents no new and material evidence, or (3) if he would not be entitled to the exercise of its discretion.*fn3 See INS v. Abudu, 485 U.S. 94, 104-05 (1988); see also INS v. Doherty, 112 S. Ct. 719, 725 (1992).

A motion to reopen must be accompanied by "affidavits or other evidentiary material." 8 C.F.R. § 3.8; Vasquez v. INS, 767 F.2d 598, 601 (9th Cir. 1985). The evidence must establish statutory eligibility for relief. To make this prima facie showing, the petitioner must demonstrate that (1) he has been physically present in the United States for at least seven years; (2) he is of good moral character; and (3) the deportation would result in extreme hardship to him or his spouse, parent, or child who is a citizen or lawful permanent resident. 8 U.S.C. § 1254(a)(1); see Limsico, 951 F.2d at 213.

The Supreme Court has approved the denial of a motion to reopen to consider suspension of deportation where "allegations of hardship were in the main conclusory and unsupported by affidavit." Jong Ha, 450 U.S. at 143. However, where evidence is presented, "to determine whether [a petitioner] has established a prima facie case, the Board must look at the evidence in its entirety. It must accept as true the facts stated in [the supporting] affidavits unless they are inherently unbelievable." Limsico, 951 F.2d at 213 (citing Sakhavat v. INS, 796 F.2d 1201, 1204-05 (9th Cir. 1986); Aviles-Torres v. INS, 790 F.2d 1433, 1436 (9th Cir. 1986)). All factors substantiating a claim of extreme hardship must be viewed in conjunction with one another. See Mejia-Carrillo v. INS, 656 F.2d 520, 522-23 (9th Cir. 1981); Jong Shik Choe v. INS, 597 F.2d 168, 170 (9th Cir. 1979), disagreed with on other grounds, Vasquez, 767 F.2d at 601. Even though the BIA has the "authority to construe 'extreme hardship' narrowly should [it] deem it wise to ...


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