Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996)

In re O-J-O-, Respondent

Decided June 14, 1996

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Suspension of deportation was granted where the 24-year-old Nicaraguan respondent lived

in the United States since the age of 13, was educated in this country, speaks English fluently, is

fully assimilated into American life and culture, is involved in various activities in this country,

runs a small trucking business, has no other means of obtaining lawful permanent resident sta

tus, and if deported, would return to a country where economic and political conditions were

difficult.

FOR RESPONDENT: Gloria M. Curiel, Esquire, Los Angeles, California

BEFORE: Board En Banc: SCHMIDT, Chairman; HURWITZ, VILLAGELIU, MATHON,

AND GUENDELSBERGER, Board Members. Concurring Opinions: DUNNE, Vice Chair-

man; HOLMES, Board Member; ROSENBERG, Board Member. Dissenting Opinion:

FILPPU, Board Member, joined by VACCA, HEILMAN, AND COLE, Board Members.

GUENDELSBERGER, Board Member:

The respondent, a native of Nicaragua, conceded deportability. In a deci

sion rendered on April 19, 1995, the Immigration Judge denied the respon

dent’s requests for asylum, withholding of deportation, and suspension of

deportation, but granted voluntary departure. The respondent has appealed

the denials of discretionary relief. We sustain the appeal as to the denial of the

application for suspension of deportation.

I. FACTUAL BACKGROUND

The respondent is a 24-year-old native of Nicaragua who lived with his

family in Esteli, Nicaragua, until his early teens. The respondent’s father was

a captain there in the fire department. After a prolonged conflict with local

Sandinista officials, including imprisonment and forced resignation from his

position, the respondent’s father left Nicaragua for the United States, arriving

in May 1985. The respondent joined his father in the United States in Novem

ber 1985. His mother and younger brother arrived soon thereafter.

The respondent attended school in the United States, where he success

fully completed elementary school, junior high, and high school. He earned

good grades, participated in school sporting events, and became fluent in

381

Interim Decision #3280

speaking, reading, and writing English. He has held a number of jobs and has

been active in his church and in community events. In particular, he is an avid

fan of softball and baseball and participates as a player in local softball and

baseball leagues. He is a deacon in his church, where he not only attends reg

ularly but also participates in the youth ministry program. He has plans to

continue his studies at the college level and hopes eventually to become a

police officer.

The respondent’s father applied for asylum in the United States in 1987,

and included the respondent in the application, but the claim was never adju

dicated. In 1994, the respondent’s father and mother returned to Nicaragua

for an interview for an employment-based immigrant visa at the United

States consulate. The respondent’s father, seriously ill at the time, died before

visa processing could be completed. His mother remained in Nicaragua after

her husband’s death and now resides there. The respondent’s brother has left

the United States and is living in Guatemala.

The respondent’s father had built up a business in the United States as an

independent hauler. After his father’s death in 1994, the respondent assumed

responsibility for the family trucking business.

II. ISSUES ON APPEAL

In his Notice of Appeal (Form EOIR-26), the respondent claims that the

Immigration Judge abused his discretion in denying his applications for relief

from deportation. The respondent’s brief raises factual and legal questions

concerning his claims for asylum, withholding of deportation, and suspen-

sion of deportation. In view of our decision on the suspension of deportation

issue, we find it unnecessary to reach the issues of asylum and withholding of

deportation.

The Immigration Judge determined that the respondent met the 7-year

continuous physical presence and good moral character requirements for sus

pension of deportation under section 244(a) of the Immigration and National

ity Act, 8 U.S.C. § 1254(a) (1994). He found, however, that the respondent

failed to demonstrate extreme hardship. The respondent contends that depor

tation to Nicaragua would cause him extreme hardship as that term is defined

in Matter of Anderson, 16 I&N Dec. 596 (BIA 1978). We agree with the

respondent that, when all of the hardship factors delineated in Matter of

Anderson are taken into account, their cumulative effect amounts to extreme

hardship under the facts presented in this case.

III. CRITERIA FOR EXTREME HARDSHIP

Under section 244(a) of the Act the respondent must demonstrate that his

deportation “would result in extreme hardship to [himself] or to his spouse,

parent, or child, who is a citizen of the United States or an alien lawfully

admitted for permanent residence.” Since the respondent in this case has no

382

Interim Decision #3280

qualifying relative who is a citizen or a permanent resident of the United

States, he must demonstrate extreme hardship to himself.

Matter of Anderson, supra, has been the starting point for many years in

applying the extreme hardship requirement. Anderson involved a

55-year-old native of the Dominican Republic who had overstayed his

nonimmigrant visa and resided in the United States for 8 years by the time of

his deportation hearing. He claimed that the impoverished economy in his

country of origin should be dispositive as to extreme hardship. The Board

rejected such a broad approach to extreme hardship, holding that “it is only

when other factors such as advanced age, severe illness, family ties, etc. com

bine with economic detriment to make deportation extremely hard on the

alien or the citizen or permanent resident members of his family that Con

gress has authorized suspension of the deportation order.” Id. at 598.

In assessing hardship in Anderson, the Board found guidance concerning

“other adverse factors” in a House Judiciary Committee report on the issue of

“extreme hardship” in the context of a bill providing discretionary adjust-

ment of status for certain aliens. Matter of Anderson, supra, at 597. This

report included the following factors:

1. family ties in the United States and abroad;

2. length of residence in the United States;

3. condition of health;

4. conditions in the country to which the alien is returnable—economic and political;

5. financial status—business and occupation;

6. the possibility of other means of adjustment of status;

7. special assistance to the United States or community;

8. immigration history;

9. position in the community.

This list was not meant to preclude consideration of aspects of hardship

which do not fit squarely within one of these nine factors.

Although these factors provide a framework for analysis, the “elements

required to establish extreme hardship are dependent upon the facts and cir

cumstances peculiar to each case.” Matter of Ige, 20 I&N Dec. 880, 882 (BIA

1994). “Relevant factors, though not extreme in themselves, must be consid

ered in the aggregate in determining whether extreme hardship exists.” Id. In

each case, the trier of fact must consider the entire range of factors concern

ing hardship in their totality and determine whether the combination of hard

ships takes the case beyond those hardships ordinarily associated with

deportation, e.g., economic detriment due to loss of a job or efforts ordinarily

required in relocating or adjusting to life in the native country. Such ordinary

hardships, while not alone sufficient to constitute extreme hardship, are con

sidered in the assessment of aggregate hardship.

383

Interim Decision #3280

IV. APPLICATION OF ANDERSON CRITERIA

The respondent entered the United States in November 1985 when he was

13 years old. He has lived here for over 10 years, including the critical forma

tive years of adolescence.

During his stay in the United States, the respondent has assimilated into

American life and culture. He successfully completed elementary school,

junior high, and high school in the United States. He won an award for his

excellent scholarship in junior high school. He has become fluent in written

and spoken English. During his hearing before the Immigration Judge he tes

tified in English rather than Spanish.

Since he graduated from high school, he has held a number of jobs. From

1992 to 1994 he worked as a security guard. In 1994 he took over his father’s

trucking business and now works as an independent hauler. He hopes to con

tinue his studies and then pursue a career as a police officer.

He is deeply involved in church activities, attending services regularly and

serving as a voluntary deacon in his congregation. As a deacon he assists in

various church activities, including cleaning the church, taking up collection,

and working with young children. The president of the respondent’s congre-

gation provided a letter indicating that the respondent has taken preliminary

theological classes and that his involvement in youth ministry includes coun-

seling, campaign coordination, and evangelization. The respondent is cur-

rently participating in continuing education courses towards full theological

requirements for ordination to the ministry.

The respondent is a baseball enthusiast who attends many games each

year. He also participates as a player on city league baseball and softball

teams. The manager of his baseball team provided a letter praising the

respondent as an athlete who has been of great value to the team and the

community.

The respondent has close friends in the Los Angeles area, including his

cousin, his brother’s fiancee, and his own fiancee. The respondent testified

that he is very close to his cousin whom he sees on nearly a daily basis. He has

also established a close relationship with his brother’s fiancee who testified

that she has known the respondent for 6 years and that he treats her like a sis

ter. Respondent testified to a close relationship of nearly 3 years with his

fiancee who is in the United States awaiting adjudication of her asylum

claim.

The Immigration Judge noted that the respondent could participate in

church activities and become involved in community activities, such as base

ball, in Nicaragua. The hardship related to community involvement, how

ever, derives from the loss of the personal and social bonds established

during the course of such activities. We consider not only the length of resi

dence, but also the degree of integration into American society and the

strength of attachments to friends and community.

384

Interim Decision #3280

Ordinarily, “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.” Matter of Ige, supra,

at 883. When an

alien has strongly embraced and deeply immersed himself in the social and

cultural life of the United States, however, the emotional and psychological

impact of readjustment must be considered in assessing hardship.

Santana-Figueroa v. INS, 644 F.2d 1354, 1357 (9th Cir. 1981) (finding that

extreme hardship could result from “the combined effect of depriving the

petitioner of his livelihood and uprooting him from a community to which he

had belonged and contributed for more than a decade.”)

The Supreme Court has noted that “deportation may result in the loss ‘of all

that makes life worth living.’” Bridges v. Wixon, 326 U.S. 135, 147 (1945)

(quoting Ng Fung Ho v. White, 259 U.S. 276, 284 (1922)). In this case, the

respondent has developed such strong ties that deportation to Nicaragua would

result in significant hardship on a social and psychological level. We find that

deportation in this case would cause significant hardship over and above the

normal disruption of social and community ties involved in deportation.

Additional hardship factors in this case relate to the depressed economic

conditions and volatile political situation throughout Nicaragua. Although

somewhat speculative, these factors do provide some additional weight in the

assessment of aggregate hardship. See Tukhowinich v. INS, 64 F.3d 460, 463

(9th Cir. 1995) (holding that political unrest in the country of origin should be

considered in assessing hardship).

While economic detriment alone is not enough to constitute extreme hard-

ship, it “is still a factor to consider in determining eligibility for suspension of

deportation.” Mejia-Carrillo v. United States INS, 656 F.2d 520, 522 (9th

Cir. 1981). In this case, the respondent helped his father to develop and oper

ate an independent trucking business which he continued to manage after his

father’s death. The respondent’s recent tax returns indicate that he has had an

income of about $13,000 per year from this trucking business. He testified

that were he to return to Nicaragua he could not establish the same kind of

business in his home country because of difficult economic and political con

ditions. His loss of income as well as the business good will he and his father

built up over the years are hardships which should be considered.

The Department of State’s January 1995 Country Profile for Nicaragua,

made part of the record of proceedings below, indicates that

“[u]nemployment and underemployment total about 50 percent.” Bureau of

Democracy, Human Rights, and Labor, U.S. Dep’t of State, Nicara

gua-Profile of Asylum Claims & Country Conditions 4 (Jan. 1995) [hereinaf

ter Profile]. The economy continues to stagnate with annual per capita

income “less than one-third of what it was in the mid-1970s.” Id. “Nicara

gua’s political problems continue to hamper economic growth and investors

remain wary.” Id.

385

Interim Decision #3280

In regard to political conditions, the respondent provided testimony and

newspaper reports concerning recent Sandinista-related security problems in

Nicaragua. The Profile reports that “Sandinistas maintain important posi

tions in the military, police, bureaucracy, judiciary and unions. They have

followers throughout the population and are in a position to punish and harm

their perceived enemies if they have sufficient motive to do so. Furthermore,

the Sandinistas can carry out such acts with virtually assured impunity

because of their positions within the public safety/security organizations,

their influence upon the government and the government’s repeated grants of

amnesty for past misdeeds.” Profile, supra, at 5. In light of the respondent’s

family’s history of conflict with the Sandinistas, the current political situa

tion in Nicaragua should be factored into the hardship assessment.

Family unity considerations do not add measurably to the hardship aspects

of this case. As indicated above, the respondent is unmarried and has no chil

dren. His mother resides in Nicaragua. His brother in Guatemala hopes to

return to the United States to marry a permanent resident with a pending natu-

ralization application. The respondent also testified that he has a close rela-

tionship with his cousin living nearby and that he has a number of cousins in

New York with whom he keeps in touch. The respondent’s fiancee is an

undocumented alien with a pending asylum claim. The expectation that a

brother may obtain permanent resident status and the hope that his undocu-

mented fiancee will be granted asylum, while relevant, add little to the over-

all assessment of hardship in this case.

That the respondent has relatively weak family ties in the United States

does not preclude him from demonstrating extreme hardship under other fac-

tors in Matter of Anderson, supra. In Tukhowinich v. INS, supra, for example,

the respondent had never been married and had no children. She had worked

in the garment industry in the United States for over 10 years to support her

retired parents and five sisters residing in Thailand and three sisters in undoc

umented status in the United States. The respondent had devoted her life to

providing for her family. Although similar work was available in Thailand,

she could not have supported her family with the wages she would earn there.

The United States Court of Appeals for the Ninth Circuit concluded that

“[b]ecause the loss of financially comparable employment would create not

only an economic hardship for Ms. Tukhowinich but would severely frustrate

what she regards as the overriding mission in her life—to provide for her par

ents and siblings—we think the BIA should have considered the implications

of her economic loss.” Id. at 464.

Hardship is diminished to the extent that alternate means of obtaining law

ful permanent residence may be available. In this case, asylum and withhold

ing of deportation having been denied, the respondent has no present means

of obtaining lawful permanent residence.

There is nothing in the respondent’s immigration history which would

detract from any of the aspects of his hardship claim. He entered the United

386

Interim Decision #3280

States when he was 13 years old and has not left since that time. He has

worked with authorization of the Immigration and Naturalization Service

and has paid taxes during all of his years of work.

V. CONCLUSION

This is a close case on the issue of “extreme hardship” but one which, in

the final analysis, meets the requirement of significant hardships over and

above the normal economic and social disruptions involved in deportation.

The respondent has lived in the United States during his critical formative

years. He has significant church and community ties in the United States. He

is fully assimilated into American culture and society. This assimilation

makes the prospect of readjustment to life in Nicaragua much harder than

would ordinarily be the case. He would also face difficult economic and

political circumstances in his native country, including the possible loss of an

ongoing business concern. This combination of hardships amounts to

extreme hardship.

With regard to the exercise of discretion, there are no significant adverse

factors. The record reflects that the respondent pays his taxes and is law abid-

ing. He holds a position as a deacon in his church, and is well regarded by

friends and acquaintances in the community. The record indicates that he has

become thoroughly assimilated to life in the United States. Due to his pro-

ductive and constructive time in the United States, the respondent merits

relief in the exercise of discretion.

For the reasons discussed above, we grant the respondent the relief of sus-

pension of deportation and terminate the proceedings.

ORDER: The appeal is sustained and deportation of the respon

dent is suspended under section 244(a)(1) of the Immigration and Nationality

Act.

CONCURRING OPINION: Mary Maguire Dunne, Vice Chairman

I respectfully concur.

I write separately to make clear what it is that I am deciding in this case. I

find it necessary to do so because of the discussion in Board Member

Rosenberg’s concurring opinion and in the dissenting opinion, much of

which I find speculative and irrelevant to the case before the Board. It is my

understanding that this case is designated as a precedent to give guidance to

Immigration Judges with respect to the extreme hardship required to be

established to render an alien eligible for suspension of deportation. While I

believe that the majority decision is straightforward and clear, and can be

understood and properly applied by a corps of very competent and profes

sional Immigration Judges, I fear that the concurring and dissenting opinions

will serve only to confuse the issue as addressed by the majority.

387

Interim Decision #3280

Quite simply, the majority of this Board finds that the respondent has pre

sented sufficient evidence, on this record, to establish that he would suffer

extreme hardship if his departure from the United States were enforced. That

is all that I am deciding. I am not deciding that all or most Nicaraguans would

qualify for suspension of deportation. I am not deciding that 10 years of phys

ical presence is always sufficient to establish eligibility for suspension of

deportation. This case is probably close to, if not already at, the outer limit at

which I would be ready to find extreme hardship under current Board prece

dents. It is, as the majority opinion states, a close case. But I have examined

the record before me and find that the respondent has carried his burden of

establishing all the elements necessary to warrant suspension of deportation.

While I would prefer not to specifically comment on the discussion in

either of the separate opinions I have referenced, I feel constrained to com

ment on the dissent’s statement that the majority errs when it relies on “very

ordinary community ties” to support its position. “Very ordinary community

ties” may be the very factors which make a forced departure from the United

States an extreme hardship for some respondents. Like many United States

citizens, the great majority of undocumented aliens lead “very ordinary”

daily lives in this country. Does that mean that those aliens cannot establish

that to break such ties could not constitute an extreme hardship? I think not.

But, again, each case must be decided on its own facts and evidence. That is

what I have done, and what I believe the majority has done—nothing more

and nothing less.

Furthermore, I do not see this decision as any departure from past Board

precedents. If one were to review the comparatively few published decisions

of this Board over the past 34 years on the extreme hardship requirement of

section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C.

§ 1254(a)(i) (1994), I think that the careful reader would clearly find that the

hardship which the respondent would incur is akin to, or in some instances

even greater than, the hardship found qualifying in those precedents. Unlike

the dissent, I do not read the majority as assigning any weight to the family

ties factor. There simply are no family ties which add to the respondent’s

hardship. While the majority cites the decision of the United States Court of

Appeals for the Ninth Circuit in Tukhowinich v. INS, 64 F.3d 460 (9th Cir.

1995), I do not read that reference as saying any more than that the absence of

family ties does not preclude a finding of extreme hardship. Clearly the facts

in Tukhowinich were different from the facts in this case, but the principle for

which I read the majority to be citing the decision is a correct one.

It is my belief that each suspension of deportation case must be resolved

on its own facts and evidence. In this case, I find that this respondent has

established, consistent with Board precedents, that he would suffer extreme

hardship if forced to depart from the United States. This is not a complex case

involving difficult legal issues. We have not been asked to modify or expand

the definition of extreme hardship as previously articulated by this Board.

388

Interim Decision #3280

We have not, in my opinion, done so. This is a simple case with a single issue

which the majority resolves in a straightforward manner. Any attempt to put

any other gloss on this decision is, in my opinion, ill advised and detracts

from the instructive value of the decision.

CONCURRING OPINION: David B. Holmes, Board Member

I respectfully concur.

The principal issue in this case concerns the meaning of the term “extreme

hardship” in section 244(a)(1) of the Immigration and Nationality Act, 8

U.S.C. § 1254(a)(1) (1994), and how that term should be applied in adjudi

cating an application for suspension of deportation under that section of law.

Although the facts presented in this case likely represent the furthest reaches

under which I would find adequate evidence that this “extreme hardship”

requirement has been met, I conclude that the majority’s finding in this

regard is consistent with existing Board precedent for the reasons discussed

below.

I. APPARENT POINTS OF AGREEMENT

The majority opinion and dissent in this case agree that the starting point

of analysis of the issue before us is Matter of Anderson, 16 I&N Dec. 596

(BIA 1978), which sets forth the factors to be considered in evaluating the

term “extreme hardship.” There is also apparent agreement with the Board’s

finding over 30 years ago that the term “extreme hardship” within the mean-

ing of the statute “is not a definable term of fixed and inflexible content or

meaning.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964).

There similarly is agreement that, when Congress amended the suspen

sion of deportation provisions in 1962, breaking section 244(a) into two sub

sections, retaining the prior “exceptional and extremely unusual” standard

for a more serious class of immigration offenders, who also had to show 10

years of continuous physical presence, and creating the new section

244(a)(1) with a revised “extreme hardship” standard for applicants who

only need show 7 years of continuous physical presence, the intent of Con

gress was to “lessen the degree of hardship” required of applicants for sus

pension under section 244(a)(1). Matter of Hwang, supra, at 452. That being

the case, I assume there is agreement that the term “extreme hardship” cannot

be defined or applied in a manner that, in effect, simply equates it to the more

rigorous “exceptional and extremely unusual” standard. While I am confi

dent that there are many other points of accord, it is at this early point of anal

ysis that disagreement in the present case appears.

The dissent notes, not unfairly, that Matter of Anderson, supra, “does little

in the way of providing content to the ambiguous phrase ‘extreme hardship.’”

In my view, the best manner in which to provide “content” to this “ambigu

ous phrase” is to provide examples and discussion in published Board

389

Interim Decision #3280

decisions of factual circumstances in which the Board has concluded that the

“extreme hardship” requirement for suspension of deportation eligibility

either has or has not been met. Although in recent years the Board has pro

vided little published guidance in this regard, the fact remains there are over

20 published Board decisions that address the “extreme hardship” require

ment in cases in which respondents have applied for suspension of deporta

tion under section 244(a)(1) of the Act. These published decisions of the

Board have not been overruled, amended, or otherwise modified by the

Board. Under the regulations which govern Board and Immigration Judge

practice, these decisions “shall serve as precedents in all proceedings involv

ing the same issue or issues.” See 8 C.F.R. § 3.1(g) (1995). While there is dis

cussion of some of this Board precedent in the majority and separate

opinions, much of it goes unreferenced.

This case is the first published Board decision in many years that involves

the adjudication of an application for suspension of deportation under section

244(a)(1) of the Act. Therefore, in the interest of the discussion being as com-

plete as possible, I think it useful to identify and briefly summarize existing

Board precedent involving “merits” adjudications of suspension applications

that include “extreme hardship” determinations. These decisions are catego-

rized below chronologically by outcome (i.e., grouped into those cases in

which the Board found the “extreme hardship” requirement not to have been

met and those cases in which the Board concluded that the “extreme hard-

ship” element had been established). Although brief summaries of the perti-

nent “extreme hardship” considerations in each of these cases are noted, I do

not claim to set forth every relevant consideration in these cases or to refer-

ence every nuance of these decisions. The decisions themselves are there to

be read. This—hopefully complete—survey of published Board decisions

only includes cases involving “merits” adjudications of applications for

relief under section 244(a)(1), rather than motions to reopen to apply for such

relief, which often present different issues.

390

Interim Decision #3280

The published Board decisions involving motions to reopen proceedings to apply for

suspension of deportation which in part address the term “extreme hardship” include Matter of

Ige, 20 I&N Dec. 880 (BIA 1994) (which includes a comprehensive discussion of the

requirements for suspension of deportation); Matter of Correa, 19 I&N Dec. 130 (BIA 1984)

(holding that equities acquired after a final order of deportation are entitled to less weight);

Matter of Reyes, 18 I&N Dec. 249 (BIA 1982); Matter of Sipus, 14 I&N Dec. 229 (BIA 1972);

Matter of Lam, 14 I&N Dec. 98 (BIA 1972); and Matter of Lee, 11 I&N Dec. 649 (BIA 1966). I

find no significant inconsistencies in these decisions and those discussed above. See also

Matter of Pena-Diaz, 20 I&N Dec.841(BIA1994)(granting a motion to reopen proceedings to

apply for suspension of deportation under the more rigorous requirements of section 244(a)(2)

of the Act); Matter of Wong, 12 I&N Dec. 721 (BIA 1968) (granting suspension of deportation

under section 244(a)(2) of the Act).

II. BOARD PRECEDENT FINDING SECTION 244(a)(1)

“EXTREME HARDSHIP” REQUIREMENT NOT TO HAVE

BEEN ESTABLISHED

The most recent published Board decision involving a “merits” adjudica

tion of an application for suspension under section 244(a)(1) of the Act was

decided by the Board some 17 years ago.

1. Matter of Saekow, 17 I&N Dec. 138 (BIA 1979). Unmarried native and

citizen of Thailand; 29 years old; entered as a nonimmigrant student; 9

years’ residence in the United States; no evidence of family ties to this

country; employment as a specialty cook. “Extreme hardship” not

established.

2. Matter of Chumpitazi, 16 I&N Dec. 629 (BIA 1978). Unmarried native

and citizen of Peru; 31 years old; 11 years’ residence in the United States;

claim of loss of job and inability to financially support mother in Peru;

argued difficult readjustment to life in Peru. “Extreme hardship” not

established.

3. Matter of Anderson, 16 I&N Dec. 596 (BIA 1978). Married native and

citizen of the Dominican Republic; 55 years old; wife with “emotional dif-

ficulties” unlawfully present in the United States; 10 children and siblings

residing in the Dominican Republic; 8 years’ residence in the United

States; employed as carpenter; principal claim related to economic detri-

ment; cousins are only relatives in the United States. “Extreme hardship”

not established.

4. Matter of Gibson, 16 I&N Dec. 58 (BIA 1976). Unmarried respondent

from Great Britain; 32 years old; 9 years of residence in the United States;

entered as nonimmigrant student; 5 semesters of college in this country;

primarily employed as a custodian; should have “no difficulty” finding

suitable employment abroad; “accustomed to the American way of life”;

no relatives in the United States. “Extreme hardship” not established.

5. Matter of Marques, 15 I&N Dec. 200 (BIA 1975). Single native and cit

izen of Spain; 41 years old; entered as nonimmigrant worker; length of

residence not stated, but apparently entered as an adult; no family ties;

principal hardship claim tied to future access to financial benefits (insur

ance and industrial commission award) that allegedly would not be avail

able if deported; facts indicate respondent is “a man of substantial means.”

“Extreme hardship” not established.

6. Matter of Kim, 15 I&N Dec. 88 (BIA 1974). Korean husband and wife;

both entered as nonimmigrant students after obtaining college educations

in Korea; claimed personal hardship arising from unsuitable employment

opportunities and hardship to 6½- and 3-year-old United States citizen

391

Interim Decision #3280

children based on diminished educational and economic advantages in

Korea. “Extreme hardship” not established.

7. Matter of Kajoory, 12 I&N Dec. 215 (BIA 1967). Unmarried native and

citizen of Iran; 32 years old; 11 years’ residence in the United States; no

family ties in this country; entered as nonimmigrant student; hardship

claim principally related to fear of persecution if returned to Iran, severely

limited economic opportunities in that country, lack of opportunities in his

own particular field, and difficulty adjusting to lower standard of living in

Iran. “Extreme hardship” not established.

8. Matter of Sangster, 11 I&N Dec. 309 (BIA 1965). Native and citizen of

Jamaica; 36 years old; entered as nonimmigrant student when over 26

years old; no dependents in this country; married to lawful permanent resi

dent, but marriage never consummated and possibly under annulment pro

ceedings; principal hardship would simply be economic detriment; not a

“scintilla of evidence” in the record that suitable employment was

unavailable in Jamaica or England. “Extreme hardship” not established.

9. Matter of Uy, 11 I&N Dec. 159 (BIA 1965). Unmarried native of the

Philippines and citizen of China; 28 years old; entered as nonimmigrant

student when about “19½ years old”; student and part-time worker; par-

ents and siblings in Philippines, and all of his brothers employed; claim of

hardship principally tied to difficulty in adjusting to new environment out-

side the United States and claim of limited opportunities in his field of aca-

demic training. “Extreme hardship” not established.

10. Matter of Liao, 11 I&N Dec. 113 (BIA 1965). Unmarried native of

China; advanced training as a pilot, skill as contact lens technician, and

college education; 39 years old; admitted as nonimmigrant worker when

approximately 28 years old; hardship claim tied to fear of persecution and

to claim of diminished employment opportunities; employed as stockman;

sought permanent residence to complete undergraduate degree and to do

postgraduate work; claim that anticipated training would be of more bene

fit in this country than in Formosa; Board noted in part that the respondent

would “be in a better position to obtain employment . . . than when he

entered the United States.” “Extreme hardship” not established.

III. BOARD PRECEDENT FINDING SECTION 244(a)(1)

“EXTREME HARDSHIP” REQUIREMENT TO HAVE BEEN

ESTABLISHED

Following are the Board’s published cases involving “merits” adjudica

tions of applications for suspension of deportation under section 244(a)(1) of

the Act in which the Board found the requirement of “extreme hardship”

392

Interim Decision #3280

established and ultimately granted suspension of deportation or affirmed

Immigration Judge grants of such relief.

1. Matter of Loo, 15 I&N Dec. 601 (BIA 1976). 53-year-old native and cit

izen of China; 25 years’ residence in the United States; lawful permanent

resident daughter; small investment in United States business in which he

was employed. “Extreme hardship” requirement met.

2. Matter of Piggott, 15 I&N Dec. 129 (BIA 1974). Husband and wife

respondents; natives of Antigua and citizens of the United Kingdom and

Colonies; minor United States children; Immigration Judge finding that

respondents would not be able to provide for their own necessities in

Antigua and that respondents’ children would suffer because of parents’

inability to provide them with proper food, living facilities, and education

in that country; youngest United States citizen daughter afflicted with

rheumatic fever, under physician’s care, and “equal medical care ...not

available in Antigua.” “Extreme hardship” requirement met.

3. Matter of Ching, 12 I&N Dec. 710 (BIA 1968). Native and citizen of

China; 55 years old; lawful permanent resident spouse; 16 years’ resi-

dence in the United States following deportation in 1952; employed as

cook; no relatives of either the respondent or his wife residing in the

United States. “Extreme hardship” requirement met. Board also con-

cluded that, even if respondent’s application were considered under the

more stringent provisions of section 244(a)(2) of the Act, suspension of

deportation would be granted.

4. Matter of Wong, 12 I&N Dec. 271 (BIA 1967), overruled on other

grounds, Matter of Dilla, 19 I&N Dec. 54 (BIA 1984). Native and citizen

of China; 36 years old; 15 years’ residence in the United States; married to

a native and citizen of China who resided in Canada with their three chil

dren, ages 16, 6, and 5; two youngest children born in Canada; partner in

grocery store; speaks “acceptable English”; would suffer “considerable

financial hardship” if deported. “Extreme hardship” requirement met.

5. Matter of Gee, 11 I&N Dec. 639 (BIA 1966). Native and citizen of

China; 32 years old; entered the United States when 18 years of age; 14

years’ residence, interrupted by 4 months’ trip to Formosa in 1960 during

which the respondent was married; respondent subsequently divorced

from wife and did not know her whereabouts; employed in laundry; sup

ports mother who resides in Hong Kong; father is deceased; 2 years’ hon

orable service in the United States Army; respondent submitted that it

would be “very difficult” to obtain a job outside this country and that he

had “become accustomed to the way of life here.” “Extreme hardship”

requirement met.

393

Interim Decision #3280

6. Matter of Lum, 11 I&N Dec. 295 (BIA 1965). Native and citizen of

China; 29 years old; lived in United States for 14 years after entry at age of

15 years; regularly employed; owned 1/2 interest in restaurant from which

he derived monthly income; “doubtful” he would be able to earn a compa

rable income elsewhere; “probably would suffer a substantial loss on his

investment in the restaurant”; last entered the United States in 1962 under

false claim to citizenship; married to a native and citizen of China who

was attending school in Hong Kong and supported by the respondent; no

children; service in United States Army. “Extreme hardship” requirement

met.

7. Matter of Chien, 10 I&N Dec. 387 (BIA 1963). Native and citizen of

China; 32 years old; 9 years’ residence; originally entered as

nonimmigrant student; became exchange visitor and granted waiver of

2-year foreign residence requirement; respondent’s wife apparently a

native and citizen of China, who was beneficiary of a waiver of the 2-year

foreign residence requirement; wife was a pediatrician, but not employed;

two United States citizen children, ages 4 and 2; employed as assistant

professor of psychology engaged in problems of “wound shock” under

contract with the Office of the Army Surgeon General; although benefi-

ciary of a visa petition, respondent could not “readily” obtain an immi-

grant visa to adjust his nonimmigrant status because the relevant quota

was oversubscribed. “Extreme hardship” requirement met.

8. Matter of Woo, 10 I&N Dec. 347 (BIA 1963). Native and citizen of

China; 28 years old; entered the United States at age 12 and resided here

for 15 years; served in the United States Armed Forces; married a native

and citizen of China in Hong Kong in 1959; wife and 2-year-old for

eign-born son reside in Hong Kong; excellent employment record and rep

utation. “Extreme hardship” requirement met.

9. Matter of Leong, 10 I&N Dec. 274 (BIA 1963). Married, native of

China; 31 years old; originally entered the United States at age 18; last

entered 3 years before deportation proceedings; United States military ser

vice and service-incurred 30% degree of disability; wife was a native and

citizen of China who resided in that country; graduated from high school

in the United States; employed in various capacities in restaurants in this

country; the respondent’s “adult years” had been spent in the United

States; his earning ability had been impaired by his service-incurred dis

ability. “Extreme hardship” requirement met.

10. Matter of McCarthy, 10 I&N Dec. 227 (BIA 1963). Native and citizen

of Canada; 45 years old; twice deported, but first entry at age 6; had pres

ence in United States spanning some 40 years; lawful permanent resident

spouse and three United States citizen children, ages 8, 16, and 19; other

wise ineligible for visa. “Extreme hardship” requirement met.

394

Interim Decision #3280

11. Matter of Louie, 10 I&N Dec. 223 (BIA 1963). Native and citizen of

China; 42 years old; 11 years’ residence in the United States; respondent’s

Chinese wife and child still resided in Hong Kong; respondent contributed

to their support; employment as waiter; permanently disabled, elderly

United States citizen father, who resided in “International Guest Home” in

Los Angeles; respondent contributed to cost of father’s maintenance and

took his father to the doctor weekly; respondent and his father had no other

close relatives in the United States. In view of “the father’s advanced age

and physical condition, ...itwould be extremely harsh, both to the

respondent and his father, to deport [the respondent] from the United

States. ”Extreme hardship" requirement met, both as to the respondent and

to his United States citizen father.

IV. CONCLUSIONS

I will not restate the facts of this case which are fully set forth in the major-

ity and dissenting opinions. However, considering these facts and the Board

precedent outlined above, I reach three principal conclusions.

First, the majority’s conclusion that the “extreme hardship” requirement

of section 244(a)(1) has been met by this respondent is not inconsistent with

any existing Board precedent which has concluded that applicants for such

relief have not satisfied this statutory requirement. In my view, the published

cases involving denials of relief that are most analogous to the respondent’s

are Matter of Chumpitazi, supra; Matter of Gibson, supra; Matter of Mar-

ques, supra; Matter of Kajoory, supra; Matter of Sangster, supra; Matter of

Uy, supra; and Matter of Liao, supra. However, particularly given the

respondent’s age at entry and the other evidence noted by the majority, a fair

reading of these cases reflects that this respondent presented more compel

ling evidence of hardship than was evidenced in these precedents.

Secondly, I find that the evidence of hardship presented by this respondent

is akin to and, in some ways, more significant than that present in the most

analogous published cases involving grants of relief under section 244(a)(1)

of the Act. I agree with the dissent that these cases are Matter of Gee, supra;

Matter of Lum, supra; and Matter of Woo, supra. While the respondents in

these three cases had longer residence in this country, two of them first

arrived in the United States at what to me was a meaningfully older age (e.g.,

entry at 13 years of age by the respondent herein as opposed to entry at age 18

as was the case in Matter of Gee); each of the respondents in these prior cases

had their residence interrupted by departures from the United States during

which they married abroad; and both Lum and Woo had wives residing in

Hong Kong at the time their applications for suspension of deportation were

considered.

While one can focus on different aspects of each of these cases,

395

Interim Decision #3280

The dissent references the fact that each of these respondents had service in the United

States military. But, there was no significant discussion of this fact in these three cases in the

the dissent acknowledges that there is at least one element (i.e., age at entry)

of the present respondent’s case that weighs more heavily in his favor than

was present in these previous published grants of relief.

The dissent alternatively states that “close observers” would note that the

Board has consistently construed the phrase “extreme hardship” more nar

rowly over the past two decades than it did in the first decade after the

“extreme hardship” standard was enacted by Congress in 1962. What is

noticeably lacking after this statement is any citation to Board precedent. The

dissent references the United States Supreme Court sanctioning of the

Board’s “narrow interpretation” of “extreme hardship” in INS v. Jong Ha

Wang, 450 U.S. 139 (1981), and suggests that the Court was approving a nar

rower construction of this phrase than the Board has articulated in its pub

lished decisions. But the Board’s decision in Wang, which involved a motion

to reopen filed by respondents who had entered the United States as

nonimmigrant treaty traders and who were the “relatively affluent, educated”

Korean parents of two young United States citizen children, was fully consis-

tent with Board precedent. INS v. Jong Ha Wang, supra, at 143. Aside from

the fact that none of the Wangs’ “allegations was sworn or otherwise sup-

ported by evidentiary materials,” the suggested facts of their case seem very

similar to those in Matter of Kim, supra, in which the Board (properly in my

view) found insufficient evidence of “extreme hardship.” INS v. Jong Ha

Wang, supra, at 142.

Finally, I end this decision as I began it. I find that the facts of this case

likely represent the limits under which I would find that the “extreme hard-

ship” element of section 244(a)(1) is satisfied. What might seem marginal

factual changes in this case to some (e.g., if the respondent had first entered

this country when he was 18 years old) would lead me to a different conclu

sion. I likewise suspect that some in the dissent would change their view if

there was marginally stronger evidence of hardship (e.g., if the respondent

had entered the United States when he was 8 years old). Decisions involving

“extreme hardship” can be difficult to make and, at the margins, perhaps hard

to distinguish. Nonetheless, I conclude that the grant of relief in this case by

the majority is fully consistent with controlling Board precedent. Accord

ingly, I concur.

CONCURRING OPINION: Lory D. Rosenberg, Board Member

I respectfully concur.

396

Interim Decision #3280

context of the "extreme hardship" requirement. Rather, since these respondents had

interruptions in their presence in this country, the discussionsof military service related to their

eligibility for relief under section 244(b) of the Act. That section absolved them from meeting

the continuous physical presence requirement of section 244(a)(1) so long as they "served for a

minimum period of twenty-four months in an active-duty status in the Armed Forces of the

United States" and were separated "under honorable conditions."

I concur in the majority opinion in its entirety. I write separately because I

find the legal analysis in the dissenting opinion to warrant a response.

Let me begin by declaring that I do believe that an analytical framework is

essential to the case by case determinations in which this Board engages

when we adjudicate eligibility for suspension of deportation. A reasonable

and fair assessment of the variety of factors presented in any one individual

case depends upon a clear construction of the statute and a comprehensive

understanding and application of our precedent decisions. While, hopefully,

one should be able to glean this Board’s interpretation of the statute by

extrapolating from the decisions we issue in individual cases, it is a legiti

mate endeavor to address the standard as we understand it, in this, our first

precedent decision on the merits of an application for suspension of deporta

tion since Matter of Anderson, 16 I&N Dec. 596 (BIA 1978).

First, it is within our authority to interpret and apply the statute we admin

ister. The dissent appears to take issue with the majority’s assertion that this

is a close case. In all cases involving the application of statutory standards to

individual circumstances, some fact patterns will be closer than others. The

dissent suggests that the result reached by the majority can only be achieved

by a “generous” application of the term “extreme” to the level of the respon-

dent’s hardship. The suspension of deportation provisions are remedial in

nature, and, arguably, all favorable results could be characterized as being a

generous exercise of this Board’s discretion. Wadman v. INS, 329 F. 2d 812

(9th Cir. 1964).

In fact, as the Supreme Court recognized, this Board has the authority both

to interpret the term “extreme,” INS v. Jong Ha Wang, 450 U.S. 139 (1981),

and to make judgments about its appropriate application to differing fact pat-

terns. If a presentation of hardship is found by this Board, in the aggregate, to

fall close to whatever line might exist between extreme and not quite extreme,

we are well within our authority to make that determination, notwithstanding

that the dissent might choose to characterize it as generous. As I discuss

below, our so doing in this case does not abrogate our obligation either to be

true to the statutory language and a reasonable interpretation of its terms, or to

decide cases consistently with our outstanding precedent decisions.

Second, the interpretation of the term “extreme hardship” reflected in the

instant decision is consistent with the statute and this Board’s precedents.

Although the dissent properly recognizes that Matter of Anderson, supra,

only sets forth factors for examination and provides limited guidance in

terms of their measurement, its subsequent discussion of how “extreme hard

ship” should be interpreted is flawed. The dissent initially appeals to the plain

language of the term “extreme” found in the statute, and then, proceeding

from an isolated examination of the term, argues that a narrow, restrictive

interpretation has been upheld by the Supreme Court.

In my view, the dissent’s analysis contravenes the Supreme Court’s own

teachings as to statutory interpretation and deference toward the administering

397

Interim Decision #3280

agency. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984). Under these principles, the Court defers to a reasonable

agency interpretation only if the statute is silent or ambiguous.

Castellon-Contreras v. INS, 45 F.3d 149, 153, (7th Cir. 1995) (citing Chevron,

supra, at 843-44). As evidenced by this very decision, and the decisions of this

Board which have preceded it, the term “extreme” in the statute is not readily

defined, at least in its application. Matter of Ige, 20 I&N Dec. 880, 882 (BIA

1993) (stating that “extreme hardship” is not a definable term of fixed and

inflexible content or meaning and depends on the facts and circumstances

peculiar to each case).

It is worth noting that when the first suspension provision was enacted in

1940, the required showing was only “serious economic detriment to a citi

zen or legally resident alien who is the spouse, parent, or minor child of such

deportable alien.” Act of June 28, 1940, 54 Stat. 670. In 1952, for a variety of

reasons, the socio-political pendulum swung in the opposite direction and

Congress enacted the far more restrictive standard of “exceptional and

extremely unusual hardship.” See Act of June 27, 1952, ch. 477, § 244(a)(1),

66 Stat. 163, (codified at 8 U.S.C. § 1254(a)(1) (1958)). Ten years later, Con-

gress retreated from this position, and while it retained “exceptional and

extremely unusual” as the standard for relief under section 244(a)(2) of the

Act, it required only “extreme hardship” for section 244(a)(1) cases. See Act

of October 24, 1962, Pub. L. No. 87-885, § 4, 76 Stat. 1247, (codified at 8

U.S.C. § 1254(a) (1964)).

In examining the term “extreme,” the dissent contrasts it against other

descriptive language Congress might have chosen to convey the level of

hardship required to warrant consideration for suspension of deportation

under section 244(a)(1) of the Act, 8 U.S.C. § 1254(a)(1)(1994). The dissent

posits that, according to a “common definition [”extreme"] means ‘existing

in a very high degree,’ ‘most advanced,’ or ‘very pronounced or exces

sive.’"That may be; however, in my view, it does little to advance the analy

sis, as the dissent contravenes yet another principle of statutory construction:

that a statute must be construed to give meaningful effect to all its provisions.

Whole act analysis compels a reasonable agency interpretation to take into

account the nature and design of the statute as a whole. K Mart Corp. v.

Cartier, Inc., 486 U.S. 281, 291 (1988); see also COIT Independent Joint

Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561 (1989) (stating

that “whole statute” interpretation dictates that statutory sections should be

read in harmony to achieve a harmonious whole).

Absent from the dissent’s analysis is any meaningful comparative consid

eration of the second subsection in the statutory section under scrutiny, sec

tion 244(a)(2), which requires a showing of “exceptional and extremely

unusual” hardship. See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (hold

ing that the Board may not blur the distinctions between two related but sepa

rate statutory standards or reduce them into one); Matter of Hou,20I&N

398

Interim Decision #3280

Dec. 513 (BIA 1992) (finding that Congress’ use of two separate standards

requires the Board to give each independent effect). The dissent notes that the

second subsection imposes a more stringent standard for determining the

presence of qualifying hardship, but dismisses it as of neglible effect to what

it sees as an overall restrictive statutory purpose. Inexplicably, the dissent

fails to even mention the Board’s decision in Matter of Pena-Diaz,20I&N

Dec. 841 (BIA 1994), our only decision in the past 30 years to address

“exceptional and extremely unusual” hardship, or to address its relevance to

the issue at hand.

While we engage in a case-by-case determination in adjudicating suspen

sion claims, any analysis of factors such as those in Matter of Anderson,16

I&N Dec. 596 (BIA 1978), must be measured against some set of criteria.

The question therefore becomes, when does the adjective “extreme” apply to

a sum of human hardship, and how can we distinguish this level of inconve

nience, discomfort, suffering, misery, or privation from that which is not

extreme, or that which is “exceptional and extremely unusual”?

Regrettably, while earlier decisions of the Board both prior to and after the

1962 amendments provide some guidance as to which factors combine to

constitute extreme hardship, the precedent decisions of this Board issued

over the past 20 years are limited in instructing affirmatively what constitutes

the level of hardship that can be considered to be extreme.

See, e.g., Matter

of Anderson, supra (finding adult resident of 8 years having a spouse with a

medical condition and facing adverse political and economic conditions in

homeland unable to demonstrate an aggregate of factors beyond economic

detriment); Matter of Kim, 15 I&N Dec. 88 (BIA 1974) (holding unproven

claim of lesser economic and educational opportunities for nonimmigrant

student couple with preschool age children insufficient to establish extreme

hardship). Although the Board undertook to examine and address the concept

of extreme hardship 2 years ago in Matter of Ige, supra, the decision is silent

about ways in which the standard could be satisfied, and instead offers only a

compendium of instances where the required showing of extreme hardship

could not be made.

399

Interim Decision #3280

Prior decisions do exist in which extreme hardship, and even exceptional and extremely

unusual hardship, is found to be established. Compare, e.g., Matter of Lum, 11 I&N Dec. 295

(BIA 1965) (adult with 13-year residence combined with loss of income from part ownership of

restaurant) and Matter of Louie, 10 I&N Dec. 223 (BIA 1963) (adult having family abroad,

with 11-year residence and an elderly, dependent father) with Matter of W-, 5 I&N Dec. 586

(BIA 1953) (higher standard satisfied by married female with residence of 9 years, five

dependent children, and few assets to allow expense of travel abroad to obtain visa) and Matter

of S-, 5 I&N Dec. 409 (BIA 1953) (higher standard satisfied by 27-year residence, limited

savings, and prospect of severe financial hardship if forced to travel abroad for a visa).

The dissent contends that the factual accuracy of the trend in recent Board decisions is

beyond dispute. However, the precedential value of prior Board decisions may be diminished in

the event they rely on broad and arguably unwarranted extrapolations drawn from individual,

fact-based findings. For example, Matter of Kim, supra, often cited for the principle that the

I believe there is a way to determine what constitutes extreme hardship

consistent with the statute, and I submit that two elements are involved in this

assessment, which correspond, respectively, to sections 244(a)(1) and

244(a)(2) of the Act. The first is the level or degree of hardship, including the

unique character of the suffering, but not the extent to which others who may

be similarly situated would or would not experience the same type of hard

ship to the same extent. The second involves at least an equivalently

high-level of hardship plus evidence of its unique, not commonly experi

enced, character.

Given the mandated statutory distinctions, the Board’s decision in Matter

of Pena-Diaz, supra, our only decision in the past 30 years to address “excep

tional and extremely unusual” hardship, is instructive.

As I read the deci

sion, the hardship factors presented by the alien (long residence, family ties,

steady employment, participation in community affairs, lack of another

means to adjust) are not materially of greater degree and certainly not unique

compared to those we see in many typical section 244(a)(1) suspension cases

today. While it may be argued that the outcome was influenced in part by the

unusual circumstances of the Immigration and Naturalization Service’s inter-

mittent acquiescence to the respondent’s continued presence in this country

after an order of deportation, that is precisely the point under the standard

applied in that case.

In assessing “extreme” hardship, our point of reference is the individual,

and we measure only the first element, the level of suffering. What is out of

the ordinary, or of significant impact, for that individual can be “extreme.”

While the plain language, “extreme,” may require an inquiry into the degree

of suffering to be experienced by an individual, it does not require that hard-

ship be either unique or unusual. I believe that this construction is not only

consistent with INS v. Jong Ha Wang, supra, which addressed only the

degree and not the comparative level of projected suffering, but best gives

400

Interim Decision #3280

forced departure of United States citizen children does not constitute extreme hardship, was

decided more on an evidentiary basis than on the merits of the weight to be given hardship

claims involving children. There, the Board found only that allegations of diminished

educational and economic opportunity, and I emphasize that they were only unproven

allegations, were insufficient to establish extreme hardship. Id. at 89-90.

In a related context, the standard of "exceptional hardship," which is capable of meaning

both greater than and different from ordinary hardship, is used to determine eligibility for

obtaining one of the four statutory waivers of the foreign residence requirement applicable to

many exchange visitors. Section 212(e) of the Act, 8 U.S.C. § 1182(e) (1994). While such

waivers ostensibly are outside the jurisdiction of the Board, a number of precedent decisions

rendered by the Immigration and Naturalization Service find it to encompass, without regardto

whether it is unique, circumstances of professional career interruption, poor nutrition and lesser

education for children, and family separation. See, e.g., Matter of Iberra, 13 I&N Dec. 277

(R.C. 1968); Matter of Habib, 11 I&N Dec. 464 (D.D. 1965). It is not unreasonable for us to

give those precedent decisions some weight in the course of our independent interpretation of

hardship standards in the suspension context.

meaning to our precedent decisions, including especially, Matter of Ander

son, supra, which specifies that a combination of individual factors could

result in extreme hardship.

Third, judicial acceptance of a “narrow interpretation” or view of

“extreme hardship” is not unequivocal. The dissent’s assertion that a narrow

interpretation has been upheld by the Supreme Court is misleading. True, it

may be argued that INS v. Jong Ha Wang, supra, set some benchmark

endorsing this Board’s interpretation of access to suspension of deportation

relief under the extreme hardship standard—one which admittedly has

enjoyed consistent acceptance by the federal courts. It is notable, however,

that neither INS v. Jong Ha Wang, supra, nor INS v. Rios-Pineda, 471 U.S.

444 (1985), involved a straightforward claim of suspension of deportation.

Wang was presented in the context of a motion to reopen which the Board

denied, finding no prima facie showing of economic or educational hardship

to exist for two affluent, college-educated Korean parents and their children.

Similarly, in Rios-Pineda, the Board and Supreme Court appeared largely to

reject the substantive hardship claims on the grounds that the movants had

indulged in manipulating the system procedurally. Closely read, moreover,

the Supreme Court in Wang acknowledged only that a narrow interpretation

was not precluded by the statute.

Further, what has not found consistent acceptance in the federal courts is

the method this Board employs for determining the degree of hardship or

weighing the hardship factors presented. While courts regularly may accept

many of our discretionary decisions as a matter of deference to the agency, it

is not infrequent to see decisions remanded for a perceived failure to consider

one or more aspects of the hardship that will result from deportation. See e.g.,

Mejia-Carrillo v. United States INS, 656 F.2d 520 (9th Cir. 1981) (failure to

consider the noneconomic hardships resulting from removal); Ravancho v.

INS, 658 F.2d 169 (3d Cir. 1981) (failure to consider psychiatric informa

tion); see also Salameda v. INS, 70 F.3d 447 (7th Cir. 1995) (failure to ade

quately consider hardship to undocumented child and respondent’s

wrenching separation from community ties); Tukhowinich v. INS, 64 F.3d

460 (9th Cir. 1995) (failure to consider adequately respondent’s role as sole

provider for undocumented family here and abroad); Watkins v. INS,63F.3d

844 (9th Cir. 1995) (failure to consider all factors including spouse’s hard

ship, fear of persecution, child’s inability to master a foreign language, and

psychological considerations); Dulane v. INS; 46 F.3d 988, 994-96 (10th Cir.

401

Interim Decision #3280

Scholars, litigators, and courts alike have recognized the confusion worked by attempting

to construe judicial decisions concerning extreme hardship when such adjudications are

coupled with motions to reopen which independently impose a "prima facie showing" standard,

as well as require the exercise of discretion. See, e.g., Aleinikoff, Martin and Motomura,

Immigration Law and Policy, 653, 666; Note, Developments in the Law—Immigration Policy

and the Rights of Aliens, 96 Harv. L. Rev. 1286, 1396 (1983); Ravancho v. INS, 658 F.2d 169

(3d Cir. 1981).

1995) (failure to consider all factors); Turri v. INS, 997 F.2d 1306 (10th Cir.

1993) (failure to consider substantial involvement and work in the commu

nity); Cerillo-Perez v. INS, 809 F.2d 1419 (9th Cir. 1987) (failure to ade

quately consider hardship to qualifying family members); Saldana v. INS,

762 F.2d 824 (9th Cir. 1985), amended, 785 F.2d 650 (9th Cir. 1986) (distor

tion and disregard of important factors is failure to consider all relevant fac

tors); Batoon v. INS, 707 F.2d 399, 402 (9th Cir. 1983) (same);

Santana-Figueroa v. INS, 644 F.2d 1354, 1357 (9th Cir. 1981) (same).

I believe that some if not all of these remands represent an unstated dis

pleasure with the severity and impropriety with which the Board until now

has construed and applied the term “extreme hardship.” Yet, this is the

approach which the dissent here urges is proper.

Fourth, the presence or absence of legislative ratification of the “narrow

interpretation” is only relevant where the statutory terms are properly con

strued. The dissent asserts support for its analysis in the lack of congressional

action to alter this Board’s purported interpretation of the statutory language

or our application of it. The dissent argues further credit is due its position, as

Congress has not disturbed these Supreme Court decisions, ostensibly

founded upon this Board’s assessments which the dissent characterizes as

“narrow.” However, despite its citation to INS v. Phinpathya, 464 U.S. 183

(1984), resulting in specific congressional action to overrule an interpretation

of this Board that had been endorsed by the Supreme Court, see section

244(b)(2) of the Act (stating that suspension applicants may establish contin-

uous physical presence despite brief, casual and innocent departures), that

example is not determinative. See Brown v. Gardner, 513 U.S. 115 (1994)

(rejecting longstanding agency regulation, although not disturbed by inter-

vening legislation, as being contrary to statutory language); Demarest v.

Manspeaker, 498 U.S. 184 (1991) (finding administrative construction

upheld by federal courts of appeal, nonetheless, not entitled to deference

when construction was contrary to the plain language); see also Matter of

Sanchez, 21 I&N Dec. 444 (BIA 1996) (Rosenberg, concurring and dissent

ing in part).

Fifth, the proper evaluation of the individual factors presented in this case

requires recognition of and adherance to the law of the United States Court

of Appeals for the Ninth Circuit. The dissent proceeds to make arguments

based on the facts of this case, accompanied by selective citations, which, in

my view, are not representative of either established or developing law in

the Ninth Circuit in which this case arises, to support its position.

See Tukhowinich v. INS, supra; Watkins v. INS, supra; see also

Castrejon-Garcia v. INS, 60 F.3d 1359 (9th Cir. 1995); Khan v. INS, 36 F.3d

1412 (9th Cir. 1994). While the dissent acknowledges that the respondent,

who arrived as a 13-year-old with his family and who apparently has inte

grated himself into American society, might experience hardship, it proceeds

to diminish this hardship in the name of a “narrow” interpretation of the

402

Interim Decision #3280

standard. Notwithstanding such hardship, the dissent argues that the subse

quent death of the respondent’s father and the departure of his mother from

the United States extinguishes his family ties here; and that, due to the appar

ently undocumented status of the respondent’s fiancee and other remaining

family members, they are of no account. It is as though these losses, by result

ing in the respondent’s having fewer ties here, somehow reduces the sub

stance of his claim. To the contrary, I would view such personal losses as

arguably enhancing the hardship to be experienced by an individual forced to

sever ties with everything he has known and relied upon since adolescence.

In addition, the dissent attempts to address—and dismiss—elements of

psychological, financial, and family unity hardship considerations in this

case. The dissent suggests that financial hardship is not inextricably linked

to, but divorced from, emotional or psychological hardship in this case. It is

as though the respondent’s loss can be dismissed as one involving only a

modest inheritance from his father, and that his means of making a living is

devoid of significance. Countless literary and dramatic works, most aptly

presented in American literature by Arthur Miller in Death of a Salesman,

indicate to the contrary how individual human identities may be determined

by their endeavors and the work they are able to perform. The dissent dis-

misses this factor as one having only monetary value.

The dissent further jumps upon the respondent’s ability to integrate him-

self into our American society at age 14 as evidence that he would not experi-

ence cognizable hardship today moving to a city outside America. This

claim, in my view, deserves no comment. Further, while the dissent obvi-

ously has done some digging to find a case arguably in support of its position

that no regard should be given to a respondent’s hardship in relation to sepa-

ration from family members who themselves are without lawful status, the

one 1987 case cited has long been supplanted by other authority in the Ninth

circuit. See, e.g., Tukhowinich v. INS, supra (finding hardship when deporta

tion would deprive respondent of ability to fulfill role as family provider for

those overseas and those in unlawful status in United States); Kahn v. INS,

supra (holding that hardship in relation to domestic partner not specified for

consideration in the statute may be considered); see also Salameda v. INS,

supra (interpretation of statute as flatly precluding consideration of hardship

to undocumented minor child not rational). Moreover, the Ninth Circuit has

been critical of this Board as being overzealous in grasping at any interpreta

tion of law or facts which will allow it to defeat a bona fide claim for suspen

sion of deportation. Castrejon-Garcia v. INS, 60 F.3d 1359, 1362 (9th Cir.

1995).

Sixth, the dissent makes no effort to assess the factors in their aggregate.

The precedent of this Board and the Ninth Circuit mandate that extreme hard

ship is to be measured cumulatively. A comprehensive evaluation of several

single factors, taken together, is implicit in Matter of Anderson, supra, at 598

(stating that it is only when other factors combine with economic detriment to

403

Interim Decision #3280

make deportation extremely hard on the alien or the citizen members of his

family that hardship of deportation can be termed extreme); it is explicit in

Matter of Ige, supra, at 882; and it is required under Watkins v. INS, supra

(finding that BIA erred because, of those factors it did consider, it considered

them in isolation); Batoon v. INS, supra, at 401; and Santana-Figueroa v.

INS, supra, at 1357.

As the majority properly finds, the combination of economic, emotional,

family, social, and cultural factors present in this case, in the aggregate,

establish that the respondent would experience extreme hardship were he to

be deported to Nicaragua. After growing from youth to adulthood during his

10 years in the United States, the respondent would lose his present means of

making a living, suffer financial deprivation, forego the support system he

has established with his fiancee, his brother, and his community, and face life

alone in the economically and politically embattled climate in Nicaragua. For

this respondent, in these circumstances, this combination of factors establish

extreme hardship.

Finally, I do not take issue with the approach and result advanced by the

dissent without setting forth affirmatively my own interpretation of the ques-

tions underlying the case before us. In my view, nothing proposed by the dis-

sent in either its definition or its invocation of Supreme Court endorsement

and federal court deference provides any further illumination to what is

meant by a “narrow” interpretation of extreme hardship, other than that relief

should be unavailable to almost everyone. A further elaboration of my own

views of how this Board ought to examine and interpret the standing statutory

provisions relating to suspension of deportation is set forth extensively and

supported by authorities in an unpublished decision, Matter in Lopez-

Medina, A71 596 039 (BIA May 29, 1996). The decision is available for pub

lic review and scrutiny and I will not reiterate my views fully here. However,

suffice it to say that I reject the arguments made by the dissent as not further

ing in any manner the analysis of what will be found to constitute extreme

hardship, and not providing to the Immigration Judges or to the public the

apparently needed guidance from this Board pertaining to this issue.

DISSENTING OPINION: Lauri S. Filppu, Board Member; in which

Fred W. Vacca; Michael J. Heilman; and Patricia A. Cole, Board

Members, joined

I respectfully dissent.

The majority couches its ruling as a simple application of Matter of Ander

son, 16 I&N Dec. 596 (BIA 1978), to an alien who would experience

“extreme hardship” were he to return permanently to Nicaragua. The major

ity concludes that this is a “close case” which satisfies the “extreme hard

ship” test because it “meets the requirement of significant hardships over and

above the normal economic and social disruptions involved in deportation.”

404

Interim Decision #3280

It is, however, only through a generous application of the term “extreme” that

the respondent’s level of hardship today qualifies him for relief.

I. THE MEANING OF “EXTREME HARDSHIP”

The majority properly starts with the factors set forth in Matter of Ander

son, supra, for assessing extreme hardship claims. But Anderson only sets

forth factors for examination. It does little in the way of providing content to

the ambiguous phrase “extreme hardship.”

Section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C.

§ 1254(a)(1) (1994), does give latitude to the Board, as the Attorney Gen

eral’s delegate, in setting the parameters of extreme hardship. It specifically

provides that the hardship must be extreme “in the opinion of the Attorney

General.” Id. Nevertheless, we are an administrative tribunal and we ought to

strive for a faithful application of this statutory test.

In doing so, meaning must first be given to the actual language selected by

Congress, including the word “extreme.” The ordinary meaning of the word

“extreme” can perhaps best be determined by considering the range of other

adjectives that could have been used. Congress could have chosen the adjec-

tives “some,” “meaningful,” “significant,” “considerable,” or “substantial,”

but it did not. Instead, it chose a stronger word than all of these, the adjective

“extreme,” which by common definition means “existing in a very high

degree,” “most advanced,” or “very pronounced or excessive.” See Web-

ster’s New Collegiate Dictionary 407 (1977). Congress used this strong

word, and we must properly apply it.

The appropriateness of a literal or narrow construction is confirmed by the

legislative history. Congress in 1952 intended to correct serious abuses it saw

arising under the more generous terms of the predecessor suspension of

deportation provisions. See S. Rep. No. 1137, 82d Cong., 2d Sess. 25 (1952);

H.R. Rep. No. 1365, 82d Cong., 2d Sess. 62-63 (1952), reprinted in 1952

U.S.C.C.A.N. 1653, 1718; S. Rep. No. 1515, 81st Cong., 2d Sess. 595-600,

609-11 (1950). In 1962, Congress further amended the statute to incorporate

the current “extreme hardship” test. It thereby lessened the degree of hard

ship needed to qualify for relief in comparison to the original test of “excep

tional and extremely unusual hardship.” Matter of Hwang, 10 I&N Dec. 448,

452 (BIA 1964). The 1952 legislative history suggests that the qualifying

hardship originally needed to reach the level of making deportation “uncon

scionable.” S. Rep. 1137 at 25. The revision in 1962 receded from this level

of severity. But the use of the word “extreme,” especially when contrasted

with other possible adjectives, is still consistent with the basic goal of the

1952 legislation, including markedly reducing the availability of relief for

aliens who manage to remain here for a number of years or who acquire ordi

nary ties to United States citizens.

405

Interim Decision #3280

The earliest published administrative cases under the 1952 Act and the

1962 amendment that gave us the “extreme hardship” test reflect the normal

uncertainty that can arise in giving concrete meaning to imprecise statutory

language at the outset. They show that the Board usually granted suspension

in strong cases, while it rejected claims in less than compelling cases. There

are some early decisions that seem generous in the light of how the Board has

applied the “extreme hardship” test over the last 20 to 25 years, starting

shortly before Matter of Anderson, supra. Nevertheless, these initial cases

show the importance of lengthy residence in, and very close family ties to the

United States, as well as the countervailing significance arising from other

means for adjusting an alien’s status. See, e.g., Matter of Wong, 12 I&N Dec.

721 (BIA 1968); Matter of Uy, 11 I&N Dec. 159 (BIA 1965); Matter of

McCarthy, 10 I&N Dec. 227 (BIA 1963); Matter of P-, 5 I&N Dec. 421 (BIA

1953).

The Board’s movement toward a narrow view of extreme hardship is par

tially reflected in the cases described in the concurring opinion of Board

Member Holmes. For example, the factual description in relation to the 1974

denial of relief in Matter of Kim, 15 I&N Dec. 88 (BIA 1974), reflects a stron-

ger claim than is described in relation to the 1963 grant of relief in Matter of

Chien, 10 I&N Dec. 387 (BIA 1963).

The Board’s past narrow interpretation of “extreme hardship” has been

upheld by the Supreme Court. See INS v. Rios-Pineda, 471 U.S. 444 (1985);

INS v. Jong Ha Wang, 450 U.S. 139 (1981). Congress, moreover, has taken

no steps to change this interpretation, in contrast to its action in the wake of

the Supreme Court’s interpretation of the “continuous physical presence”

requirement for suspension. See INS v. Phinpathya, 464 U.S. 183 (1984); see

also section 315(b) of Immigration Reform and Control Act of 1986, Pub. L.

No. 99-603, 100 Stat. 3359, 3439 (“IRCA”), amended by sec. 2(q)(1) of the

Immigration Technical Corrections Amendments of 1988, Pub. L. No.

100-525, 102 Stat. 2609, 2613-14. The Supreme Court’s ruling in INS v. Jong

Ha Wang does not dictate our construction of the statute. But this 1981 deci

sion was in existence at the time Congress amended the suspension of depor

tation statute in response to the Court’s 1984 Phinpathya ruling. That

amendment did not touch the extreme hardship requirement.

Indeed, the respondent here does not even seem to have quite the degree of

hardship reflected in the most generous Board cases from earlier years with

parallel fact patterns. These cases also involved aliens who arrived during

their teen-age years. While the aliens were a little older than the respondent

upon their entries, they all had been in the United States about twice the mini

mum 7 years required by the statute. These aliens also had significant

service in our Armed Forces, a factor of focus in those cases, which may have

affected the dispositions. E.g., Matter of Gee, 11 I&N Dec. 639 (BIA 1966);

Matter of Lum, 11 I&N Dec. 295 (BIA 1965); Matter of Woo,10I&N

Dec. 347 (BIA 1963); see also Matter of Huey, 13 I&N Dec. 5 (BIA 1968)

406

Interim Decision #3280

(Congress did not approve suspension grant to alien who appears, at time of

rejection, to have resided in U.S. for 13 years starting at age 16, and whose

deportation likely would have been to a country, Taiwan, he had never even

visited).

It should also be apparent to close observers that the Board consistently

construed the phrase “extreme hardship” more narrowly over the last two

decades than it did in the first decade after the 1962 adoption of the “extreme

hardship” test. Cf. Cortes-Castillo v. INS, 997 F.2d 1199, 1204 (7th Cir.

1993) (observing that the “exceptional and extremely unusual” hardship test

has also become more stringent over the past 40 years). It is this now long

standing, narrow construction that was upheld by the Supreme Court.

Congress deliberately used extreme language in requiring “extreme hard

ship.” In view of the history behind the adoption of this test, the Supreme

Court case law, and the administrative practice over the last 20 or more years,

I see no justification for us to apply anything other than a plain meaning or

narrow approach to the concept of extreme hardship.

This does not mean that relief is only available when the level of hardship

becomes unbearable, or that we must be guided only by the harshest interpre-

tations seen in past years. But we ought to be able reasonably to describe seri-

ous detriment before we can fairly characterize a set of circumstances as

involving “extreme hardship.” Within this overall frame of reference, I find

the majority’s explanation unpersuasive.

II. THE FACTS

The respondent presents a rather unremarkable claim of hardship. He

arrived here 10 years ago in November of 1985, and he turned 14 the month

after his arrival. His father preceded him by several months, and his mother

and brother arrived within the same year. He went to school in California and

has acquired fairly typical connections to both his local community and the

nation as a whole.

Indeed, in many respects his ties at the time of the hearing were less than is

often seen by aliens whose entire immediate family came here 10 years ago.

His father passed away in 1994, his mother has returned to Nicaragua, and his

brother was in Guatemala. He also has aunts and uncles in Nicaragua, as well

407

Interim Decision #3280

For approximately 30 years, administrative grants of suspension of deportation were

subject to congressional review and disapproval. This finally ended when the Supreme Court

declared the “one House veto” provisions of former section 244(c) of the Act, 8 U.S.C.

§ 1254(c) (1982), unconstitutional. INS v. Chadha, 462 U.S. 919 (1983).

Neither the majority nor any of the concurring opinions dispute the factual accuracy of the

observation about Board practice in construing extreme hardship over the last two decades.

The lack of Board precedent to support this assertion, noted in Board Member Holmes’

concurrence, evidently arises from the very fact he earlier points out: “[I]n recent years the

Board has provided little published guidance . . . address[ing] the ‘extreme hardship’

requirement . . . .”

as a step-sister he met only once. The “family unity considerations” found

“relevant” by the majority pertain in part to the respondent’s illegal alien

fiancee, a permanent resident cousin in California, and the brother in Guate

mala, whose bride-to-be was a permanent resident and had applied for citi

zenship about a month before the hearing.

The respondent’s fiancee attended the hearing, but she did not testify. She

is an asylum applicant, but we know very little about the nature of her claim

or her presence here. The respondent did indicate that the only way for him to

immigrate at this time was through any relief available in deportation pro

ceedings. The respondent is also close to his California cousin, and he relies

on telephone calls to his New York cousins if he needs help or to talk to

someone.

There seems to be little doubt that the respondent has integrated himself

into American society. While he has an expunged disorderly conduct viola

tion, he plays baseball and softball, enjoys working out at the gym, helps at

church, and has donated blood to the Red Cross and clothing to the Salvation

Army. A return to Nicaragua does not appeal to him. The political and eco-

nomic climate are far from ideal. In addition, the respondent indicated that

his family departed in 1985 under stressful circumstances, with his father

having been detained for 3 months evidently because of problems with

Sandinista officials. Although the respondent was never threatened in Nica-

ragua, he was concerned about being pressed into military service because he

was almost 14.

The respondent graduated from high school in Los Angeles in June of

1991, and he took several occupational courses until December of 1991.

These allowed him to be employed as a security guard from 1992 until nearly

1994. It appears that he began driving his father’s truck when his father

returned to Nicaragua. The respondent wants to attend college in the United

States because one of his dreams is to become a police officer.

III. THE MAJORITY’s HARDSHIP RULING

The majority finds that the respondent’s deportation to Nicaragua would

cause him to suffer “significant” social and psychological hardship, appar

ently arising from the fact that he has “deeply immersed himself in the social

and cultural life of the United States.” It finds some additional hardship stem

ming from the political and economic conditions in Nicaragua, although it

characterizes these potential hardships as “somewhat speculative.” It also

finds that “[f]amily unity considerations” are “relevant,” but “do not add

measurably to the hardship aspects of this case.”

A. Social and Psychological Hardship

The majority has determined that the respondent is “fully assimilated into

American culture and society.” He has lived here over 10 years, including

408

Interim Decision #3280

some formative adolescent years. He did well in school and is fluent in Eng

lish. He has worked here, and inherited his father’s truck. He is deeply

involved in church activities. He is a good athlete and is active in baseball and

softball. He is also close to a cousin in Los Angeles and to his brother’s

fiancee.

I agree that these factors are of consequence. But the majority overstates

the case in finding “significant hardship over and above the normal disrup

tion of social and community ties” that would arise from the respondent’s

deportation.

Historically, the Board has treated family and length of residence as being

generally of the greatest importance in suspension cases. Except in rare

cases, community ties are of markedly less importance, and for good reason.

Church and recreational affiliations are routinely changed by persons as they

move for any number of reasons, such as employment, schooling, marital and

family choices, and health reasons. It is not that these ties do not matter; it is

that they very typically matter less than other considerations, so much so that

for most persons the important decisions in life are only marginally swayed

by community ties.

I doubt it would surprise anyone if the respondent left his friends, church,

and adult sports teams in the Los Angeles area to go to college or take a posi-

tion as a police officer in a distant city, should he realize his dream. Of

course, he could be expected to find new friends, actively attend a new

church, and join new teams. What is surprising is that these very ordinary

community ties form the bulwark of the majority’s position, as it finds that

the speculative political and economic considerations add only “some addi-

tional weight,” and the family unity considerations “do not add measurably”

to the hardship.

The respondent did spend some formative years in the United States. He

also spent some formative years in Nicaragua, and the majority makes no

claim that he is a stranger to Nicaraguan society or culture. He was nearly 14

when he arrived here. His family came at about the same time, and he thus

continued to be raised in a family with a Nicaraguan heritage at the same time

that both he and other members of his family were adjusting to life here. He is

as proficient in written and spoken Spanish as he is in English. The fact that

he is “fully assimilated into American culture and society” does not mean

that he would have any difficulty quickly assimilating once again into Nica

raguan culture and society. Indeed, given the presence of his mother and

other extended family members in Nicaragua, he would very likely adjust to

life there nearly as rapidly as he would in a move to another American city.

B. Economic and Political Considerations

The majority states that the “respondent helped his father to develop and

operate an independent trucking business which he continued to manage

409

Interim Decision #3280

after his father’s death.” It also credits the respondent’s testimony that he

could not establish a similar business in Nicaragua.

The respondent does own a truck, but he does not employ anyone else. Nor

does he own any additional property, aside from his personal belongings and

his car. It appears either that he drives for another business as an independent

contractor, or that he obtains independent trucking assignments through

some sort of brokerage or dispatching company. The $13,000 income noted

by the majority was the respondent’s gross income in 1994. After insurance,

maintenance, and other expenses, his net income was $5,310.00.

The record does indicate that the respondent inherited his father’s truck,

and that driving this truck is what the respondent did for a living at the time of

the hearing. The record does not show that he helped to “develop” this busi

ness, and it is not clear what he must do to “manage” it now, aside from driv

ing and maintaining the truck. The Immigration Judge was correct in

according this “business” no special weight. From the record, it appears to be

little more than ordinary employment in the United States. Every indication

suggests that a sale of the truck, by itself, would completely liquidate the

“business.”

Owning and driving a truck is an honest way to make a living, and it is

likely that a return to Nicaragua will entail some financial hardship. But in

this respect the respondent faces no more than the loss of what amounts to a

job that earned him a little over $5,000, which was $2,000 below the poverty

guideline for a family of one in 1994. 59 Fed. Reg. 6277 (1994). It is under-

standable why the respondent testified that he wants to become a police

officer.

With respect to political problems, the respondent testified that he was

never threatened in Nicaragua, but that he was facing possible military con

scription as he was approaching age 14 when he left. The State Department

report included in the record and relied on by the majority discloses that the

military draft has been abolished in Nicaragua and that “there have been no

reports of...Sandinista mistreatment of those who avoided . . . military ser

vice.” Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of State,

Nicaragua - Profile of Asylum Claims & Country Conditions (Jan. 1995).

There has been no showing that the problems experienced by the father have

affected the mother since her return or would affect this respondent should he

return. The majority states, but fails to explain why “the current political situ

ation in Nicaragua should be factored into the hardship assessment.” It is also

not evident from the majority’s opinion exactly how it has factored this ele

ment into the analysis, if at all.

C. Family Unity Considerations

The majority finds that the respondent has “relatively weak family ties in

the United States” and declares that “while relevant, [they] add little to the

410

Interim Decision #3280

overall assessment of hardship.” It is unclear why the majority assigns any

weight to the family ties factor, except as to the California cousin who is law

fully present here and is properly given weight as a friend elsewhere by the

majority. The majority gives some minimal, but relevant weight to the

respondent’s ties to his fiancee and to his brother in Guatemala who at the

time of the hearing planned to return to his own fiancee. These persons, how

ever, enjoyed no lawful immigration status, and one of the two was not even

in the United States at the time of the hearing. The immigration judge did not

accord any weight to the respondent’s separation from either the brother in

Guatemala or the fiancee asylum applicant.

While there seems to be a paucity of published cases on point, I have not

found a case in which the Board previously accorded hardship weight to an

alien’s separation from other unlawful residents or intending unlawful resi

dents of the United States. The issue, however, has been addressed in the sus

pension of deportation context in unpublished Board orders. The decision of

the United States Court of Appeals for the Ninth Circuit in Alvarez-Madrigal

v. INS, 808 F.2d 705 (9th Cir. 1987), quotes from one such order and upholds

the Board’s refusal to accord hardship weight to separation from illegal alien

relatives. There, the Board stated:

We will not assume that his family members will remain here indefinitely in an illegal sta-

tus, although that might be their intention. It may well be that if therespondent is allowed to

remain in the United States, he will be separated from his family members who cannot

remain here. Also, it would be contrary to the policy of the immigration laws to allow an

alien to obtain an advantage through the presence of relatives illegally in the United States.

Id. at 707. As this passage indicates, the absence of lawful status for a friend

or relative greatly complicates any assessment of potential hardship from

separation. The friend or relative may not ultimately be permitted to remain

here, causing separation hardship if the alien suspension applicant stays

behind while the friend or relative is deported. There is the potential for

“bootstrapping” claims upon each other, as well as the policy concerns noted

by the Board, as quoted in Alvarez-Madrigal.

According hardship weight to separation from persons unlawfully in the

United States, or intending an unlawful presence here, is an unwise and unex

plained departure from past practice.

IV. CONCLUSION

The majority is not convincing in its claim that the respondent has demon

strated “significant hardships over and above the normal economic and social

disruptions involved in deportation.” It finds “extreme hardship” arising

from rather ordinary community ties, assimilation into American culture, and

unnoteworthy economic hardship. While not inconsequential, this overall

level of hardship is not “extreme” under a plain meaning test, which even by

dictionary definition would require a showing that the hardship exists in a

very high degree, is most advanced, or is very pronounced or excessive.

411

Interim Decision #3280

This does not mean that the ambiguous phrase “extreme hardship” is

unbending or only applies where the consequences are draconian. But the

Board long ago resolved the ambiguity in the statutory language in favor of a

narrow construction that mandated strong showings of hardship to obtain

relief. That resolution has been followed for several decades, and has been

approved by the courts. While not a generous view, it is consistent with the

literal language of the statute and with the concerns leading to this statutory

restriction on suspension of deportation. The respondent’s level of hardship

cannot properly be deemed “extreme.”

412

Interim Decision #3280