L-O-G
21 I. & N. Dec. 413 (1996)
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Rule of Law:
A motion to reopen deportation proceedings to apply for suspension of deportation may be granted if the applicant presents new facts that, combined with existing record facts, indicate a reasonable likelihood of establishing 'extreme hardship' and satisfying other statutory requirements, making it worthwhile to develop the issues at a full evidentiary hearing, without requiring a conclusive showing of eligibility at this stage.
Facts:
- The minor respondent, L-O-G-'s daughter, entered the United States in 1986 at the age of 6 and has continuously resided there since.
- The adult respondent, L-O-G-, the mother, entered the United States in April 1988 and has continuously resided there since.
- L-O-G- later gave birth to a United States citizen child, who is now 6 years old and has begun school in the U.S.
- The respondents are Nicaraguan nationals.
- Nicaragua is an extremely poor country, characterized by political turmoil, a shattered economy, very high unemployment, and minimal government services.
- The respondents had been covered by the Nicaraguan Review Program since 1987, under which Nicaraguan nationals were generally not deported and were granted employment authorization.
Procedural Posture:
- An Immigration Judge denied the respondents' applications for asylum and withholding of deportation.
- The respondents appealed the Immigration Judge's decision to the Board of Immigration Appeals.
- On May 10, 1995, the Board of Immigration Appeals dismissed the respondents' appeal, affirming the Immigration Judge's denial of asylum and withholding of deportation.
- The respondents then filed a motion to reopen their deportation proceedings with the Board of Immigration Appeals to apply for suspension of deportation.
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Issue:
Did the respondents make a prima facie showing of "extreme hardship" sufficient to warrant reopening their deportation proceedings to apply for suspension of deportation, or is a conclusive showing of eligibility for relief required at this stage?
Opinions:
Majority - Chairman SCHMIDT
Yes, the respondents made a prima facie showing of "extreme hardship" sufficient to warrant reopening their deportation proceedings to apply for suspension of deportation, as a conclusive showing is not required at the motion to reopen stage. The Board has broad discretion to grant or deny motions to reopen and determines if new facts, coupled with existing record facts, indicate a "reasonable likelihood of success on the merits" for the underlying relief. The term "extreme hardship" is not rigidly defined but depends on the specific facts and circumstances of each case, and Congress, in 1962, intended to lower the standard from "exceptional and extremely unusual hardship." The Board should not pre-judge the ultimate merits of an application for relief at this stage. Considering the combined factors of the minor respondent growing up in the U.S. since age 6, the U.S. citizen child beginning school, the dire economic and political conditions in Nicaragua, and the respondents' prior coverage under the Nicaraguan Review Program (which created a reliance interest), the Board found a reasonable likelihood of extreme hardship. The court emphasized that "extreme" does not equate to "unique," and hardship does not need to be unique to be extreme; rather, individual factors can become significant when weighed collectively.
Dissenting - Board Member FILPPU
No, the respondents did not make a prima facie showing of "extreme hardship" sufficient to warrant reopening their deportation proceedings, as the presented circumstances do not rise to the level of "extreme." The dissent argues that the majority generously accorded weight to hardship factors that do not individually or collectively meet the high standard of "extreme." "Extreme" implies hardship that is "far beyond the norm" or "of the greatest severity," consistent with congressional intent to limit the availability of suspension of deportation. The dissent questions whether the hardships to qualifying individuals can be aggregated, suggesting there must be at least one person whose individual hardship is "extreme." They found the evidence unpersuasive, noting the adult respondent's relatively short time beyond the 7-year minimum, her prior life and education in Nicaragua, and disputing the claim about the citizen child's English-only speaking ability. They conclude that the hardships shown are nothing "outside the normal hardship that is routinely experienced" by families returning to less affluent nations.
Analysis:
This case clarifies the standard for granting motions to reopen, particularly regarding the "extreme hardship" requirement for suspension of deportation. It establishes that a prima facie showing of a "reasonable likelihood of success" is sufficient, rather than a conclusive demonstration of eligibility. The ruling underscores the Board's flexible approach to defining "extreme hardship," explicitly rejecting a "unique or extenuating circumstances" standard and affirming that combined factors, even if individually not extreme, can collectively meet the threshold. This decision provides crucial guidance to Immigration Judges and counsel on the type and weight of evidence required at the motion to reopen stage and the factors considered for hardship, potentially expanding access to a hearing for those seeking suspension of deportation based on complex, cumulative hardship factors.
