Gutierrez-Centeno v. Immigration & Naturalization Service

CYNTHIA HOLCOMB HALL, Circuit Judge,

concurring in the result:

I concur in Part I, denying review of the request for asylum and withholding of deportation because the Board’s decision that petitioners failed to establish either past persecution or a well founded fear of future persecution was supported by the record. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992).

Although I disagree with the majority’s approach and reasoning in Part II, I agree that the motion to reopen should be remanded to the BIA. I therefore concur only in the result.

We review a BIA decision denying a motion to reopen for abuse of discretion. Hassan v. INS, 927 F.2d 465, 467 (9th Cir.1991). The Board may deny a petitioner’s motion if it finds that the petitioner does not establish extreme hardship. Id. The Board has discretion to construe extreme hardship narrowly. INS v. Wang, 450 U.S. 139, 145, 101 S.Ct. 1027, 1031-32, 67 L.Ed.2d 123 (1981). However, our decisions require the Board to state reasons for its decision and to properly consider all relevant factors. See, e.g., Hassan, 927 F.2d at 467-68.

Here, the Board’s reasoning was general and conclusory. The Board did not mention petitioner’s community ties to the United States. The son (David) has started college here; the mother (Gutierrez) is involved in community-oriented health care and church activities. Nor did the Board correctly consider family ties. See Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir.1983). Gutierrez’s aunt who raised her fives here, as does her brother. She has never lived with her father, who fives in Nicaragua, and she does not know the whereabouts of her Nicaraguan husband. Finally, the Board did not *1536address the impact of deportation on the children.

The motion to reopen should be remanded because the Board abused its discretion. On remand, the Board must consider each application individually and must consider all relevant factors.

This Court, however, should not attempt to dictate the outcome of the Board’s consideration of extreme hardship factors. To do so would “encroach[ ] on the authority which the Act confers on the Attorney General and his [or her] delegates.” Wang, 450 U.S. at 144, 101 S.Ct. at 1031. The majority, however, indulges itself in an extended discussion as to how it might weigh various factors, concluding that Ms. Gutierrez’s hardship “is not ‘the type of hardship experienced by most aliens_’ ” Such surplusage is indicative of the majority’s attempt to overstep its bounds. The majority not only articulates factors for the Board to consider, but also attempts to dictate to the Board how it should weigh the factors, instructing the BIA to consider the merits of petitioners’ motion “as explicated” in its opinion. To the extent the majority opinion purports to resolve the ultimate finding of “extreme hardship,” however, it is dicta.

The decision today does not hold that anything in petitioners’ applications requires a finding of extreme hardship. To the extent the petitioners cite economic difficulties to themselves should they return to Nicaragua, this is not enough to distinguish them from all other Nicaraguans required to return to their country. See Wang, 450 U.S. at 144, 101 S.Ct. at 1031; Shooshtary v. INS, 39 F.3d 1049, 1051 (9th Cir.1994) (no “extreme hardship” arising from “generalities about having to move [petitioner’s] family elsewhere, anticipated difficulties in finding work, and anticipated loss of friends”). Likewise, the mere fact that the children have lived in the United States for their formative years, and are not culturally Nicaraguan, does not compel a finding in their favor. See Ramirez-Durazo v. INS, 794 F.2d 491, 498 (9th Cir.1986); Shooshtary, 39 F.3d at 1051.

Furthermore, the majority’s suggestion that hardship arises from the political climate in Nicaragua is both irrelevant and inaccurate. The majority states that the Board should have considered that, if deported, the petitioners would return to a country “emerging from years of civil war and experiencing devastatingly high levels of inflation, unemployment and poverty,” and notes that “petitioners submitted various newspaper articles describing the economic crisis in Nicaragua.”

To begin with, the current relevance of the newspaper articles and the January 1995 profile of Nicaragua cited to in footnote 10 is speculative at best, especially in light of the recent election in Nicaragua, which signals an improving economic and political climate. See, e.g., Larry Rohter, Rightist is Victor Over Sandanistas in Nicaragua Vote, N.Y. Times, Oct. 22, 1996, at A1 (Nicaragua moving towards free enterprise and closer U.S. ties).

More importantly, no authority requires the BIA to look at the general economic and political climate of an applicant’s homeland to determine extreme hardship. The cases the majority cites accord little weight to the general economic and political climate of an applicant’s homeland and do not require the Board to accord any weight to these general conditions.

Despite the majority’s implication to the contrary, In re O-J-O, 1996 WL 393504 (BIA June 14, 1996), does not hold that generalized economic conditions in Nicaragua should be a factor in determining hardship. As the majority points out in footnote 10, the O-J-O Board did take note of the conditions in Nicaragua; however, the Board declined to accord them significance, specifically stating that these factors are “somewhat speculative.” 1996 WL 393504 at *5. Instead, the O-J-O decision was based on the particularized economic detriment to the petitioner in that case, who would lose the family business his father started in the United States if he were deported. Id. at *5. (petitioner’s “loss of income as well as the business good will” considered).

Similarly, In re Anderson, 16 I & N 596 (BIA 1978) does not hold that conditions in an alien’s homeland are decisive in determining hardship. In Anderson, the Board cau*1537tioned against “laying critical emphasis on the economic and political situation” in an alien’s homeland, even though such situations may be relevant. 16 I & N at 598. The Anderson decision denied suspension of deportation and found that Congress did not intend to suspend deportation of every alien experiencing “some degree” of hardship. Id. The Board concluded that, despite the political and economic climate in the petitioner’s homeland, there was not “a sufficient number of other adverse factors” to find the necessary hardship. Id.

Likewise, Mejia-Carrillo v. INS, 656 F.2d 520 (9th Cir.1981) does not support the majority’s proposition that economic conditions in Nicaragua should be considered. The Mejia-Carrillo court discussed economic detriment in terms of the petitioner’s personal financial hardships, such as losing her job, and does not mention the general economic conditions in the petitioner’s homeland. Id. at 522.

Thus, the cases cited by the majority stand for nothing more than the proposition that a petitioner’s individual circumstances must be taken into account when determining whether extreme hardship exists. The majority opinion must be read in this context; as it cites no precedent supporting any broader proposition.

Finally, the majority’s statement that remand is “particularly appropriate in light of the BIA’s recent decision in In re O-J-O ” is somewhat curious. O-J-O was a fact specific holding that did not create any new legal propositions. The decision was clear that “... the ‘elements required to establish extreme hardship are dependant upon the facts and circumstances peculiar to each case.’” 1996 WL at *3 (citation omitted). See also Id. at *7 (“I am not deciding that all or most Nicaraguans would qualify for suspension of deportation.”); Id. at *8 (“... each suspension of deportation ease must be resolved on its own facts and evidence.”); Id. at *17 (“In assessing ‘extreme’ hardship, our point of reference is the individual_”).

The O-J-O decision is not new law, but merely a “close case” under existing law. Id. at *6. There were three separate concurrences emphasizing this point, noting that the decision is “probably close to, if not already at, the outer limit,” id. at *7, and is “the furthest reaches” of an extreme hardship finding. Id. at *8.1 Therefore, O-J-O is instructive as an outer boundary of facts that will establish extreme hardship; it is not the springboard from which the majority might wish this court to leap in the future. The O-J-O Board itself did not intend the decision to create novel precedent. See id. at *7 (“I do not see this decision as any departure from past Board precedents.”) The majority’s implications that it does are disingenuous, and the majority’s reliance on In re 0-J-0 is wholly unnecessary to its conclusion to remand the motion to the Board.

In conclusion, the motion to reopen should be remanded to the Board to give the petitioners individual consideration of each of their claims for extreme hardship.

Although this court may require the Board to consider all relevant factors and to articulate its reasoning, the law is clear that we may not dictate the Board’s results. Whether or not to grant a motion to reopen is “entirely” within the' Board’s discretion. INS v. Phinpathya, 464 U.S. 183, 188 n. 6, 104 S.Ct. 584, 588 n. 6, 78 L.Ed.2d 401 (1984); see also Wang, 450 U.S. at 143-44, 144 n. 5, 101 S.Ct. at 1030, 1030 n. 5; Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir.1985); Hassan, 927 F.2d at 467-68. Because the majority does not claim to overrule the Supreme Court or previous decisions of this court, I read its decision today as doing nothing more than remanding to the Board, with instructions to carefully consider all relevant factors and to articulate reasons for its findings on “extreme hardship.” Try though it might, the majority cannot eviscerate the requirement that a petitioner claiming extreme hardship must make “a showing of significant actual or potential injury.” Shooshtary, 39 F.3d at 1051 (citation omitted). Any suggestions in the majority opinion that petitioners have actually established extreme hardship do not in any way bind the Board when it *1538weighs appropriate extreme hardship factors on remand.

. Additionally, four Board members dissented from the opinion.