Yerwent Vartanian, Petitioner, v. Immigration and Naturalization Service, Respondent, 89 F.3d 848 (9th Cir. 1996)

MEMORANDUM^** 

Yerwent Vartanian, native and citizen of Syria, petitions for review of the Board of Immigration Appeals' ("BIA") decision denying his motion to reopen to apply for suspension of deportation under section 244(a) (1) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1254(a) (1). We have jurisdiction pursuant to 8 U.S.C. § 1105a(a) and we grant the petition.

We review the BIA's denial of a motion to reopen for an abuse of discretion. Aviles-Torres v. INS, 790 F.2d 1433, 1435 (9th Cir. 1986). The BIA's discretion is not entirely unchecked and the BIA is required to "state its reasons and show proper consideration of all factors when weighing equities and denying relief." Mattis v. INS, 774 F.2d 965, 968 (9th Cir. 1985). Furthermore, the BIA is not assumed to have "considered factors that it failed to mention in its decision." Casem v. INS, 8 F.3d 700, 702 (9th Cir. 1993).

To be eligible for suspension of deportation, Vartanian must show, among other things, that his deportation would result in "extreme hardship" either to himself or to his United States citizen or lawful permanent resident spouse, parent, or child. 8 U.S.C. § 1254(a) (1); INS v. Jong Ha Wang, 450 U.S. 139, 139-40 (1981) (per curiam). A prima facie case is established when an alien presents affidavits or other evidentiary materials which, if true, would meet the substantive requirements for relief. Hernandez-Ortiz v. INS, 777 F.2d 509, 513 (9th Cir. 1985); 8 C.F.R. § 103.5(a) (2).

Here, in addressing Vartanian's prima facie eligibility for suspension of deportation, the BIA briefly considered the hardship to Vartanian's United States citizen son if the child were to accompany his father to Syria. However, the BIA overlooked Vartanian's declaration, in which he stated that he would not want his son to have to go to Syria and that separation from his son "would completely devastate both of us." The BIA's cursory consideration of the hardship to Vartanian's son "falls short of the consideration of the 'specific circumstances of citizen children' and the 'express and considered conclusion as to the effect of those circumstances upon those children' that is required by this circuit." Delmundo v. INS, 43 F.3d 436, 443 (9th Cir. 1994) (quoting Cerrillo-Perez v. INS, 809 F.2d 1419, 1426 (9th Cir. 1987).

The BIA also failed to consider the hardship to Vartanian's lawful permanent resident wife. Vartanian's deportation may force her to choose between moving to Syria or abandoning her husband and raising her two children alone in the United States. Cf. Watkins v. INS, 63 F.3d 844, 848-49 (9th Cir. 1995).

In denying the motion to reopen in the exercise of its discretion, the BIA failed to consider the favorable and unfavorable factors surrounding Vartanian's failure to report for deportation. See Mattis, 774 F.2d at 968. The BIA discounted Vartanian's "dental problems" without considering whether Vartanian was febrile and suffering from "delirium" on the date in question and whether his doctor had advised him not to travel. Such cursory consideration is an abuse of discretion. See id.

Accordingly, we grant the petition for review and remand for further proceedings.

PETITION FOR REVIEW GRANTED.¹