Clement C. Nwabueze, Petitioner, v. U.S. Immigration and Naturalization Service, Respondent, 976 F.2d 737 (9th Cir. 1992)

MEMORANDUM^** 

Clement C. Nwabueze, a citizen of Nigeria, challenges the denials of his petition for suspension of deportation and motion to reopen. We vacate the decision of the Board of Immigration Appeals (BIA), and remand for further proceedings.

DISCUSSION

After hearing Nwabueze testify, the immigration judge (IJ) found that Nwabueze lacked credibility. That finding played an important part in all of the BIA's rulings; we therefore address it as a preliminary issue.

Our review of credibility determinations is narrow in scope; we will uphold such assessments unless they lack substantial evidentiary support. Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir. 1987). We require the trier of fact, however, to offer a "specific, cogent reason" for her disbelief of a witness's testimony. Id. (citations omitted).

In this case, the IJ found that Nwabueze was well versed in English and appeared to have a good memory. She noted, however, that he was selectively unable to remember certain matters or to respond in detail to cross-examination by the government's counsel. Nwabueze was reluctant to discuss his family's financial status. The IJ particularly emphasized Nwabueze's unwillingness to elaborate on his relationship with Freddy Lewis Jones, a known criminal, and why he was in possession of Jones' driver's license. The IJ also questioned Nwabueze's abandonment of college to learn truck driving, when he admitted that a degree was essential to his future employment in Nigeria and that truck drivers could not find employment there.

Equally suspect was Nwabueze's statement that he did not learn until 1990 that his first wife, Barbara Cannon, had withdrawn her I-130 petition seven years earlier. During an interview with an official from the Immigration and Naturalization Service (INS), Cannon admitted that their marriage was a sham. After the interview, Nwabueze received an Order to Show Cause and spent eleven days in detention. Nwabueze's alleged ignorance of the petition status was further undercut by his claim to continuous residence with this spouse from the date of their marriage until his departure from Alabama in September 1984.

The IJ also expressed concern about the validity of an affidavit submitted by the Reverend Alvin D. Johnson regarding Nwabueze's second marriage. Nwabueze claimed to have known the minister for five years and to have met him after moving to Detroit. After the IJ pointed out that Nwabueze had not moved to Detroit until the end of 1986 and therefore could not have known him for five years, Nwabueze responded that they actually met in Alabama sometime between 1982 and 1984.

Although a minor discrepancy in dates is not dispositive, we conclude that the overall testimony provided ample support for the adverse credibility finding. The reasons supplied by the IJ were specific and cogent, and we uphold her determination. See Sarvia-Quintanilla v. United States INS, 767 F.2d 1387, 1395 (9th Cir. 1985).

Nwabueze also contests the BIA's refusal to suspend his deportation pursuant to 8 U.S.C. § 1254(a) (1). The statute permits the Attorney General to grant relief to a deportable alien who: (1) has been physically present in the United States for not less than seven years; (2) is a person of good moral character; and (3) is a person "whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." 8 U.S.C. § 1254(a) (1).

We review the BIA's decision for abuse of discretion. Hernandez-Robledo v. INS, 777 F.2d 536, 541-42 (9th Cir. 1985). We require the agency to weigh all factors presented, both favorable and unfavorable. Zavala-Bonilla v. INS, 730 F.2d 562, 567-68 (9th Cir. 1984). The stated reasons for denying relief must reflect proper consideration of these factors. Id.

In this case, the BIA adopted the IJ's discussion of hardships alleged by Nwabueze and its conclusions. [BIA Decision at 2, Certified Administrative Record (CAR) at 75]. The findings primarily dealt with the financial implications for his family, with one reference to the fact that Nwabueze had "significant family" left in Nigeria. [IJ Decision at 15-17, CAR at 147-149]. The BIA held that Nwabueze's failure to demonstrate extreme hardship rendered him inelgible for relief. Even if extreme hardship would result, the BIA declined to exercise its discretion because of Nwabueze's lack of candor.

This assessment failed to account for non-economic hardship to Nwabueze's second wife, Lou Ann Nwabueze, and his stepson. We have stated that " [s]eparation from one's spouse entails substantially more than economic hardship." Cerrillo-Perez v. INS, 809 F.2d 1419, 1424 (9th Cir. 1987) ( citing Yong v. INS, 459 F.2d 1004, 1005 (9th Cir. 1972)) (remanding for consideration of potential hardships to citizen children in the event their alien parents are deported without them). The breakup of a family in itself may constitute extreme hardship. Mejia-Carrillo v. United States INS, 656 F.2d 520, 522 (9th Cir. 1981).¹ 

The BIA alternatively held that, even if extreme hardship would follow deportation, Nwabueze's lack of candor foreclosed it from exercising discretion in his favor. We have long required the BIA to weigh both favorable and unfavorable factors before rendering a discretionary decision. De La Luz v. INS, 713 F.2d 545, 545-46 (9th Cir. 1983) (abuse of discretion arose not from finding of extreme hardship, but rather from failure to consider favorable factors before denying discretionary relief). The BIA's analysis omits an important segment of the equities weighing in Nwabueze's favor, and thereby ignores our requirement. See id.

By failing to consider the separation factor, the BIA "overlooked or evaded an inquiry necessary to a reasoned decision." Cerrillo-Perez, 809 F.2d at 1426 (citation omitted). It consequently failed to weigh this factor against the unfavorable factors. For these reasons, we conclude that the BIA abused its discretion. See id.; De La Luz, 713 F.2d at 545-46. On remand, the agency must demonstrate that it fully considered the implications, both economic and non-economic, of separating Nwabueze from his second wife and stepson.

Nwabueze also challenges the BIA's refusal to reopen his deportation proceedings in order to allow him to pursue an adjustment of status based on his marriage to a United States citizen. In INS v. Abudu, the Supreme Court held that the BIA may simply determine whether discretionary relief was appropriate, without first considering whether new evidence existed or a prima facie case had been made. 485 U.S. 94, 105 (1988). In this case, the BIA concluded that Nwabueze did not merit discretionary relief, even assuming that he had a prima facie case and that the revised law permitting an application constituted new evidence.

We review the BIA's decision for abuse of discretion, and must uphold it unless it was arbitrary, irrational, or contrary to law. Jen Hung Ng v. INS, 804 F.2d 534, 538 (9th Cir. 1986). We require the BIA to state its reasons and to show proper consideration of all factors, both favorable and unfavorable. Id.

In this case, the BIA relied entirely upon the IJ's assessment of Nwabueze's credibility. This aspect of his immigration history is certainly an important consideration. See generally INS v. Rios-Pineda, 471 U.S. 444, 451 (1985). The BIA, however, failed to consider other equities, including the consequences of breaking up Nwabueze's family. We therefore conclude that the agency exercised its discretion in an arbitrary manner. See Mattis v. United States INS, 774 F.2d 965, 968-69 (9th Cir. 1985) (remanding because BIA ignored evidence that alien was fully employed and financially responsible). On remand, the BIA shall set forth a decision based on all relevant equities, including Nwabueze's five-year marriage to a United States citizen and the consequences of separating family members.

Nwabueze raises additional issues in supplementary briefs, including a due process violation stemming from his alleged lack of access to library materials. We hold that the error, if any, was harmless. The remaining claims are frivolous.² 

VACATED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS DISPOSITION.