Joyce D. Brathwaite, Petitioner, v. Immigration and Naturalization Service, Respondent, 633 F.2d 657 (2d Cir. 1980)

Joyce Brathwaite petitions for review of a decision and order of the Board of Immigration Appeals, based upon the findings of an immigration judge, denying her application for suspension of deportation under section 244 of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1254.¹ 

Concededly deportable for remaining in the United States after the expiration of her nonimmigrant visa in April 1971, petitioner based her application for relief on the asserted "extreme hardship" that deportation to her native St. Vincent would visit upon her and her United States citizen child, born in New York in 1972. After a hearing at which petitioner was represented by counsel, the immigration judge concluded that petitioner had failed to establish that either she or her son would suffer anything more than "ordinary" hardship, and therefore held that petitioner did not meet the statutory requirements for suspension of deportation. The immigration judge also expressed doubt that petitioner would have merited a favorable exercise of discretion to grant the relief sought even if she had satisfied the "extreme hardship" requirement, though the judge did not decide the question. Nonetheless, the judge did grant petitioner the opportunity of voluntary departure, as provided by 8 U.S.C. § 1254(e).

Brathwaite appealed to the Board of Immigration Appeals, which upheld the findings of the immigration judge, concluding that Brathwaite "ha(d) been granted the only form of relief available to her in the circumstances of this case."

We are not insensitive to the difficulties that petitioner may face, but we find no reversible error in the Board's decision. Petitioner bore the burden of showing that she met all of the statutory requirements for eligibility for relief under section 244, including "extreme hardship" to herself or her son. See 8 C.F.R. § 242.17(d) (1980); Tovar v. INS, 612 F.2d 794, 796 (3d Cir. 1980). In seeking to meet this burden, petitioner testified before the immigration judge and submitted a psychologist's report concerning her son; in addition, the judge conducted a telephonic interview with the psychologist during the course of the hearing. There was no testimony from the child or from the father, who, though separated from petitioner since 1977, reportedly maintained weekly contact with the child and provided support money of $35 per week.

Construed in petitioner's favor, the evidence presented at the hearing suggested that the child, who had already begun school, was shy and withdrawn; that he remained attached to his father;²  and that he had developed close relations with other members of the extended family in which he lived. All of this indicates that the child will suffer some dislocation and disruption if he accompanies his mother to St. Vincent; indeed, it seems likely that he may experience more than the "normal melancholy" incident to a family separation that we found insufficient to establish "extreme hardship" in Chiaramonte v. INS, 626 F.2d 1093, 1101 (2d Cir. 1980). However, the judge did not find credible the psychologist's assertion that the child would be emotionally harmed by departure from his New York home.³  Moreover, there was no evidence that the son would be unable to adjust to new surroundings in St. Vincent, or that moving there would expose him to oppressive social or cultural conditions, substantial deprivation, or risks to his physical or mental health.⁴  While there are undoubtedly significant cultural and other differences between New York and St. Vincent, petitioner has presented no evidence that these differences necessarily entail "extreme hardship." Cf. Wang v. INS, 622 F.2d 1341 (9th Cir. 1980) (en banc) (noting potential hardship to children of Korean descent who speak no Korean); Banks v. INS, 594 F.2d 760 (9th Cir. 1979) (finding no extreme hardship in deporting mother with 12-year-old daughter to West Germany, when mother testifies that daughter can learn German and that she herself can obtain employment). See also Barrera-Leyva v. INS, 637 F.2d 640, 644 (9th Cir. 1980) ("(T)he degree of adjustment necessary (to affect the hardship determination) must be greater than that required of the ordinary alien who is deported.").

We note that there is some uncertainty as to the proper standard of judicial review for determinations of eligibility for suspension of deportation. Section 244 sets three largely factual prerequisites for eligibility: seven years physical presence in the country, good moral character, and extreme hardship to the applicant or his United States citizen spouse, parent, or child. See note 1 supra. The extreme hardship element, however, calls for a finding "in the opinion of the Attorney General," suggesting that a degree of discretion may be reserved in evaluating hardship claims. We have on occasion accepted the argument that all three of these findings are subject to review on the basis of substantial evidence, see Wong Wing Hang v. INS, 360 F.2d 715, 717 (2d Cir. 1966).⁵  This view corresponds with the standard of judicial review set out in the Immigration and Nationality Act itself, which provides that "the Attorney General's findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive." 8 U.S.C. § 1105a(a) (4). See also Bastidas v. INS, 609 F.2d 101, 103-04 (3d Cir. 1979).

On other occasions, however, we have regarded the determination whether extreme hardship exists as a matter within the discretion of the Attorney General, and therefore subject to a more limited standard of review. See United States v. Chiaramonte, supra, 626 F.2d at 1101, relying on the Ninth Circuit's decision in United States v. Banks, supra. Cf. United States ex rel. Dolenz v. Shaughnessy, 206 F.2d 392, 394-95 (2d Cir. 1953) (interpreting § 243(h) of the Act, see note 5 supra). In Foti v. INS, 375 U.S. 217, 228 n.15, 84 S. Ct. 306, 313, 11 L. Ed. 2d 281, the Supreme Court recognized that there was an issue as to the proper standard of review, but did not decide it.

Similarly, we do not find it necessary in this case to decide which standard of review is proper, and would be reluctant to do so on the record before us, since both parties appear to have assumed that the Board's determination was to be reviewed as a matter of discretion only. We conclude that petitioner must fail regardless of the applicable standard: the Board's finding that petitioner had not shown "extreme hardship" is supported by reasonable, substantial, and probative evidence, and in any event reflects no abuse of discretion.

Accordingly, we must deny the petition for review. We reject the government's contention that our decision in Ballenilla-Gonzalez v. INS, 546 F.2d 515, 521 (2d Cir. 1976), cert. denied, 434 U.S. 819, 98 S. Ct. 58, 54 L. Ed. 2d 75 (1977), mandates the forfeiture of a grant of voluntary departure in this case. Petitioner's failure to file a timely motion for extension of time to depart, in accordance with 8 C.F.R. § 244.2 (1980), can be remedied by the filing of a motion to reinstate the grant. On this record, we see no reason why such a motion should be denied.

The petition for review is denied.