Unpublished Disposition, 916 F.2d 716 (9th Cir. 1990)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 916 F.2d 716 (9th Cir. 1990)

Maria De Lourdes SA PEREIRA, Petitioner,v.UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 89-70495.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 13, 1990.Decided Oct. 16, 1990.

Before EUGENE A. WRIGHT, SCHROEDER and WILLIAM A. NORRIS, Circuit Judges.


MEMORANDUM* 

Maria de Lourdes Sa Pereira, a citizen of Portugal, moved to reopen and reconsider a 1986 deportation order against her so she could apply for suspension of deportation. The Board of Immigration Appeals denied the motion to reopen, finding her ineligible for this relief because she had not made a prima facie showing of "extreme hardship." We find that the BIA abused its discretion by disregarding, on the basis of illusory conflicts, Sa Pereira's evidence that she would suffer extreme hardship if her deportation were not suspended. We reverse and remand for a hearing on whether Sa Pereira is eligible for suspension of deportation.

FACTS AND PRIOR PROCEEDINGS

In 1973, Maria de Lourdes Sa Pereira and her two-year-old son immigrated to the United States. Their husband and father, Henrique Sa Pereira, had immigrated here in 1971 and was working as a fisherman. The family remained in New Bedford, Massachusetts as lawful permanent U.S. residents until December 1974. At that time, marital difficulties stemming from Mr. Sa Pereira's involvement with another woman prompted the family to return to Portugal.

The family remained in Portugal until 1980. A daughter was born to them in 1976. In 1980, they moved to Canada where Mr. Sa Pereira's father lived. In 1982, the Sa Pereiras re-entered the United States. They have since resided here continuously.

Following hearings, an immigration judge ruled in 1986 that Ms. Sa Pereira was deportable because she was excludable upon her 1982 entry. The BIA dismissed her appeal. This court affirmed, finding substantial evidence to support the BIA's conclusion that Sa Pereira had abandoned her intention to return to the United States.

Sa Pereira began the present chapter of her case by petitioning the BIA to reopen her deportation proceedings. She supported her motion with her own affidavit, her 1981 through 1988 income tax returns, and affidavits of two U.S. citizens stating that deporting the Sa Pereira family would cause each family member extreme hardship. She also submitted an application to suspend the deportation order under 8 U.S.C. § 1254. Her counsel later forwarded a letter to the BIA from Dr. Leslie Y. Rabkin, a licensed clinical psychologist.

Dr. Rabkin's letter opined that the Sa Pereira family would suffer extreme hardship if deported. Ms. Sa Pereira would suffer extreme hardship involving "the loss of personal hopefulness, the pain of her family's disarray, and the loss of her cherished dreams for her children." Additionally, Dr. Rabkin predicted that the family's deportation would cause a resurgence of the anger and blame associated with Mr. Sa Pereira's long-ago affair, leading "to the dysfunction, if not dissolution" of the family.

Without holding a hearing on the petition, the BIA denied reopening. It found that Sa Pereira had failed to establish that deportation would cause her extreme hardship. In so concluding, the BIA rejected the psychologist's opinion that deportation would cause a major disruption to the Sa Pereiras' marriage. The BIA suggested that Dr. Rabkin's opinion conflicted with a statement in Sa Pereira's affidavit that her "marital discord ... has now been resolved." The BIA also viewed Dr. Rabkin's opinion as inconsistent with the couple's earlier return to Portugal to shore up their marriage.

DISCUSSION

This court reviews for abuse of discretion the BIA's denial of a motion to reopen. Zacarias v. INS, 908 F.2d 1452, 1459-60 (9th Cir. 1990); see INS v. Rios-Pineda, 471 U.S. 444, 449-52 (1985); accord M.A. A26851062 v. INS, 899 F.2d 304, 308 (4th Cir. 1990) (en banc). Under this standard, the BIA's ruling will not be disturbed unless it is arbitrary, irrational, or contrary to law. Desting-Estime v. INS, 804 F.2d 1439, 1440 (9th Cir. 1986).

To justify suspending deportation proceedings, an alien must make a prima facie showing of eligibility for relief. See Wiedersperg v. INS, 896 F.2d 1179, 1182 (9th Cir. 1990). The alien must present "affidavits or other evidentiary material" which, if true, would meet the requirements for substantive relief. 8 C.F.R. Sec. 103.5(a); Hernandez-Ortiz v. INS, 777 F.2d 509, 513 (9th Cir. 1985). In reviewing this evidentiary material, however, the BIA need not resolve all factual ambiguities in the alien's favor. See INS v. Abudu, 485 U.S. 94, 109-10 (1988).

The BIA agrees that Sa Pereira satisfies two of the three statutory requirements for suspension relief: seven years continuous presence and good moral character. 8 U.S.C. § 1254(a). The BIA based its denial of reopening upon the third element, which requires convincing the Attorney General or his delegate that deportation would cause extreme hardship.1  Id.

Suspension of deportation is discretionary relief; the BIA may deny it even to an alien who meets the statute's three eligibility requirements. INS v. Rios-Pineda, 471 U.S. 444, 445-46, 449 (1985); Villena v. INS, 622 F.2d 1352, 1357, 1361 n. 12 (9th Cir. 1980) (en banc). Here, the BIA's denial of reopening was not premised on its administrative discretion. The denial was based solely on the finding that Sa Pereira failed to prove the extreme hardship element of the prima facie case. We review this finding for abuse of discretion. See Hernandez-Ortiz v. INS, 777 F.2d 509, 517 (9th Cir. 1985).

The BIA may define "extreme hardship" narrowly, INS v. Jong Ha Wang, 450 U.S. 139, 144-45 (1981), but it may not exercise its discretion to deny reopening in an unreasoned or arbitrary manner. See Rios-Pineda, 471 U.S. at 451. In this case, the BIA could not conclude that Sa Pereira failed to offer prima facie proof of extreme hardship without either rejecting or disregarding Dr. Rabkin's contrary opinion. The agency accomplished this result by finding Dr. Rabkin's letter inconsistent with other record evidence. Our precedents show that in so doing the BIA abused its discretion. See Sakhavat v. INS, 796 F.2d 1201, 1205 (9th Cir. 1986); Reyes v. INS, 673 F.2d 1087, 1089 (9th Cir. 1982).

Dr. Rabkin's opinion that deportation would cause the dysfunction, perhaps the dissolution, of the Sa Pereiras' marriage is not inherently unbelievable. Cf. Reyes, 673 F.2d at 1089-90 (BIA abused its discretion in disbelieving alien's affidavits where they were not inherently unbelievable). Rather, Dr. Rabkin's opinion comports with common sense. After Mr. Sa Pereira's affair, the family members lost their status as lawful U.S. residents. If they are ultimately deported for lack of this status, a resurgence of blame and anger would seem likely.

Dr. Rabkin's opinion also is not inherently inconsistent with the affidavit of Sa Pereira and with the family's earlier departure. Cf. Sakhavat, 796 F.2d 1201, 1205 (BIA abused its discretion in making a "crabbed evaluation" of the evidence and unearthing "illusory inconsistencies"). The two purported inconsistencies identified in the BIA's cursory analysis ignored differences in time and circumstance.

The first purported inconsistency misconstrues the evidence. Dr. Rabkin predicts the renewal of past marital discord if the Sa Pereiras are deported. The BIA contrasted this with the affidavit's statement that the marital discord has "now been resolved." These statements simply use different time frames: one predicts the future; the other describes the present. Both may be true.

The second purported inconsistency also misconstrues the evidence. The BIA observed that the Sa Pereiras "initially thought it best to return to Portugal where their extended family was located in order to resolve their marital discord." The BIA presented this behavior as inconsistent with Dr. Rabkin's opinion that deportation to Portugal would disrupt the marriage. This presentation distorts the couple's motives for returning to Portugal: they returned, at least in part, to get away from the source of conflict. Just because the return to Portugal helped their marriage in the 1970s does not mean deportation to Portugal would not hurt their marriage in the 1990s.

In Abudu, 485 U.S. 94 (1988), another case involving an alien's motion to reopen deportation proceedings, the Supreme Court expressed concern about the "strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases." Id. at 107. The Court feared that "aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case" would be able to "endless [ly] delay" their deportations if motions to reopen were too freely granted. Id. at 108.

Granting Sa Pereira's motion to reopen is not inconsistent with these concerns. She has had no hearing on her allegations of extreme hardship. The BIA does not assert that she has creatively produced new facts merely to delay her deportation. It acknowledges that deportation would cause her hardships. It simply refuses to consider seriously whether these hardships would be "extreme." Because she presented a prima facie case, the BIA's denial of reopening was an abuse of discretion.

III. Consolidation of the Sa Pereira Proceedings

Separate deportation proceedings are pending against Mr. Sa Pereira and the two children. There is no reason why the disposition of the Sa Pereiras' petitions should be considered separately. Counsel for the Immigration Service conceded at oral argument that the cases should have been heard together. The BIA should consolidate these matters, to the extent the potentially different immigration statuses of the family members make this practicable.

CONCLUSION

The denial of reopening is REVERSED. We REMAND to the BIA for an evidentiary hearing on Sa Pereira's claim of extreme hardship. The cases of all the family members are to be CONSOLIDATED, to the extent practicable. No costs will be allowed to either party.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

The suspension of deportation statute, 8 U.S.C. § 1254(a) (1), applies the extreme hardship consideration only to the alien applicant, and the citizen or permanent resident children or spouse or parents of the applicant. Therefore the BIA need not consider any hardship that Sa Pereira's deportation would cause her husband, son or daughter, as none of them is a citizen or permanent resident

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.