concurring in part and dissenting in part:
I concur in No. 82-1130 and respectfully dissent in No. 82-1610 for the reasons hereinafter set forth.
INS concedes that this court has jurisdiction to review the petition for review filed in No. 82-1610. The issue here is whether the Board of Immigration Appeals (BIA) abused its discretion in denying, without an evidentiary hearing, petitioner’s motion to reopen his deportation hearing in order to *1161apply for suspension of deportation pursuant to Section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(i). The motion was supported by affidavits to the effect that petitioner is gainfully employed in this country, earning $20,000 a year, and he and his present wife have been living in the United States for more than seven years and are the parents of two minor children, both under three years of age, born in the United States and thus became citizens of this country. This is evidence of extreme hardship which the children and their father and mother would suffer if the father was deported. Affidavits were also submitted as to the excellent reputation and industry of petitioner, an emigrant with a third grade education from Mexico to this country and as to his gainful employment here, which he was unable to secure in Mexico. The economy, as a matter of common knowledge, is severely depressed in Mexico at the present time and the United States for some time has been confronted with serious problems in coping with unlawful migration of many unemployed Mexican citizens to this country, who crossed the broad borders of 2,000 miles between the two countries in order to obtain work and earn a living in the United States, which they could not obtain in Mexico. Petitioner also submitted to BIA a social evaluation of petitioner and his family by Ms. Luisa P. Maurer, MSW, with her resume attached thereto, which indicated that the deportation of petitioner would create an extreme hardship to petitioner, his wife and minor children and she would so testify at the hearing. BIA declined to reopen to hear this testimony of Ms. Maurer which was not previously available. BIA thus abused its discretion.1
Petitioner’s two children, who are citizens of the United States certainly had legal rights to due process of law. The petition for review has merit and the children and their father and mother would have been subjected to extreme hardship if petitioner had been deported without an evidentiary hearing and an appropriate adjudication of the merits to which he and his wife and children were entitled.
In denying petitioner’s motion to reopen the deportation proceedings for consideration of an application for suspension of deportation under Section 244(a)(i) of the Immigration and Nationality Act, INS and the majority rely principally upon a Per Curiam decision of the Supreme Court in INS v. Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123, rehearing denied, 451 U.S. 964, 101 S.Ct. 2037, 68 L.Ed.2d 342 (1981), Per Curiam. INS does not indicate that the Per Curiam related only to a ruling of the court not to grant the petition for a writ of certiorari and give the case plenary consideration, and the case was never admitted to the Supreme Court for decision on its merits. Justices Brennan, Marshall and Black-mun voted to grant the petition for certiorari and give the case plenary consideration.
The Per Curiam of the Supreme Court also pointed out deficiencies in the record which precluded granting certiorari and plenary consideration of the merits. Extreme hardship in that case was asserted as to two American born children, because neither child spoke Korean and would thus lose “educational opportunities if forced to leave this country”. Respondents in that case also asserted some economic hardship to themselves and their children from the *1162forced liquidation of their assets at a possible loss. These allegations were largely conclusory and none of them were sworn to in affidavits or otherwise supported by evidentiary materials. BIA ignored in the present case, the regulation which requires facts relating to hardship be supported by affidavits, 8 C.F.R., Part 3, § 3.8. Affidavits and evidentiary materials were supplied in the present proceeding by petitioner.
On page 144 of the Per Curiam of the Supreme Court it is stated:
Here, the Board considered the facts alleged and found that neither respondents nor their children would suffer extreme hardship. The Board considered it well settled that a mere showing of economic detriment was insufficient to satisfy the requirements of § 244 and in any event noted that respondents had significant financial resources while finding nothing to suggest that Mr. Wang could not find suitable employment in Korea. It also followed that respondents’ two children would suffer serious economic deprivation if they returned to Korea.
In our case, the evidence was entirely different. It was shown by overwhelming evidence that the two minor children, a boy and girl, both under three years of age, who are American citizens, would suffer extreme hardship, and the Board of Immigration Appeals did not give this matter adequate consideration. Diaz-Salazar left Mexico because he was unable to support himself and he came to this country. It has been shown by overwhelming evidence that the two minor children would suffer extreme hardship if he were deported to Mexico, where he could not earn a living to support himself and the children when in fact that is the very reason he left Mexico. He could not even support himself. He now has a lucrative position in Chicago, earning $20,000 a year and it is suggested that he take them back to Mexico, where he could not even support himself. My concern is entirely based on the hardship suffered by these two minor children who are citizens of the 'United States, and I think that they are entitled to due process of law and to have an adequate hearing. The Board of Immigration Appeals did not even allow the witness as to social evaluation to testify as to extreme hardship, and this is another ground of error.
In Villen a v. INS, 622 F.2d 1352 (9th Cir.1980), the court sitting en banc stated:
The mere fact that an alien’s child has been born in the United States does not entitle the alien to any favored status in seeking discretionary relief from deportation. E.g. Wang v. INS, 622 F.2d 1341 (9th Cir.1980) (en banc). However, as we have repeatedly stated, the Board must consider what effect the deportation will have on the citizen child and whether the child will suffer extreme hardship. Because the nature and extent of hardship to a citizen child is difficult to discern without a hearing, circumstances that suggest that the alien’s deportation would cause extreme hardship to his child warrant a hearing. Wang v. INS, 622 F.2d 1341 (9th Cir.1980) (en banc).
The court remanded to BIA for an additional evidentiary hearing.
In Mejia-Carrillo v. INS, 656 F.2d 522 (9th Cir.1981), the court stated:
Under § 244(a), economic loss alone does not establish extreme hardship, but it is still a fact to consider in determining eligibility for suspension of deportation. Jong Shik Choe v. INS, 597 F.2d 168,170 (9th Cir.1979); Urbano de Malaluan v. INS, 577 F.2d 589, 594 (9th Cir.1978). In addition, the Board must consider personal and emotional hardships which result from deportation. Chan v. INS, 610 F.2d at 655. Included among these are the personal hardships which flow naturally from an economic loss — decreased health care, educational opportunities, and general material welfare. The most important single factor may be the separation of the alien from family living in the United States. In fact, this court has stated that separation from family alone may establish extreme hardship. Urbano de Malaluan v. INS, 577 F.2d at 593-94; Yong v. INS, 459 F.2d 1004, 1005 (9th Cir.1972); see Bastidas v. INS, 609 F.2d 101, 104-05 (3rd Cir.1979).
In Wright v. INS, 673 F.2d 153, 158 (6th Cir.1982), the court not only granted the *1163petition for review, it also set aside the order of deportation and remanded with instructions to dismiss the order to show cause, thereby terminating the deportation proceeding. The court stated:
The Board should have also related that Jasette had an equity in a house which she purchased from her earnings for several years as an employee of the Fisher Body Division of General Motors. She will lose this equity and have to take her child to Jamaica if the INS order of deportation is enforced, a very real disaster and hardship. The daughter who is a United States citizen should not be treated this way. In 1982, Jasette is still living in this country and supporting her five year old citizen daughter. With all the long delay, there is certainly nothing equitable about the order of deportation.
In Rios-Pineda v. U.S. Dept. of Justice, Etc., 673 F.2d 225 (8th Cir.1982), the court held:
Where aliens following their entry without inspection had been physically present in United States continuously since May 1,1974 and had met seven-year continuous presence requirement during pendency of appeal, where husband alien in addition to being homeowner had been gainfully employed since 1974, and where both aliens’ children were born in United States and has resided there since birth, aliens were entitled to consideration and ruling on their claim that they were entitled to suspension of deportation on a proper motion to reopen. Immigration and Nationality Act, § 244(a)(1), 8 U.S. C.A. § 1254(a)(1).2
INS contends that the many decisions of the Ninth Circuit and Third Circuit conflict with the Supreme Court’s decision in Wang. If there is any truth in this contention, why did not the INS petition the Supreme Court for certiorari in the many circuit court cases which it claims were erroneously decided? It is submitted that the Supreme Court in Wang, never intended to deprive a petitioner of his right to an evidentiary hearing in all cases.
The social evaluation by Ms. Maurer, MSW, indicated that the deportation of petitioner would create extreme hardship to petitioner and his family. It states:
The couple state they see their future in terms of providing a home for their children in the U.S. Their lack of formal education would create extreme hardship to them in seeking employment in Mexico. Their citizen children would suffer unnecessarily. Mrs. Diaz’ extended family is here and Mr. Diaz has lost contact with his extended family. His first wife is already living with someone else. From their perspective, they have nothing to offer their children there; no economic stability, no love of extended family members, and the insecurity intrinsic to the unknown.
It is evident that the couple have built strong family and community ties in the Chicago area and that they have achieved a position of respect through hard work and sacrifice which gives a significant boost to their morale and egos. Deportation threatens to destroy all that they have achieved over the years and to tear apart their close family nucleus and to deprive their children of all of the advantages of their birthright and of having a close family and security.
Their deportation to Mexico would cause a severe blow to the entire family and would not be without impact to the community. Thus, it is my recommendation that the court be lenient in this case and allow the U.S. citizen children, Alfredo and Sylema, the joy, stability, security and devotion of a united family.
In my opinion, the finding of the BIA that petitioner did not establish a prima facie case is clearly erroneous, as it was proven by overwhelming evidence, and BIA abused its discretion in not granting an evidentiary hearing on the merits of the case. The Board neglected to demonstrate just how petitioner with a third grade education, who was unable to obtain employ*1164ment in Mexico, when he unlawfully migrated to this country, and upon being deported to Mexico obtain employment to support himself, his wife and two minor American children in the United States. It is obvious that the wife and children would become destitute and a charge upon society here, if petitioner is deported to Mexico and does not take his wife and children with him, since he could not obtain a living even for himself. Therefore, petitioner would be motivated not to take his wife and children with him to Mexico and would go there by himself and suffer the consequences. In the United States his wife and American born children will be taken care of and not allowed to starve. In reality, the order of deportation, if petitioner takes his wife and American children with him to Mexico operates to sentence them to a life of destitution. If the wife and children are permitted to remain in the United States, they can at least live and be happy “in the land of the free and the home of the brave”.
The order of the Board denying petitioner’s motion to reopen his deportation hearing in order to apply for suspension of deportation pursuant to Section 244(a)(c) of the Act should be vacated and set aside, and the cause remanded for an evidentiary hearing and determination of the merits of the case.
. The terrible conditions of destitution now prevailing in Mexico are graphically portrayed in an article on page 1 of The Wall Street Journal of November 17, 1982, entitled:
Desperate Journey Hard Times at Home Cause More Mexicans To Enter U.S. Illegally
Many Are Caught in Texas; Their Tales of Privation Illustrate Extent of Crisis
‘Peso Isn’t Worth a Damn’
The article states that “proposed changes of U.S. immigration laws would grant amnesty to illegal aliens if they have resided ‘continuously’ in the U.S. since before January, 1980, but legislators haven’t yet officially defined the term ‘continuously’. (The legislation passed the Senate in August and is tentatively set to be voted upon in the House late this month or early December).”
. Other pertinent decisions are Sida v. INS, 665 F.2d 851, 854 (9th Cir.1981); Prapavat v. INS, 662 F.2d 561 (9th Cir.1981); Ravancho v. INS, 658 F.2d 169 (3d Cir.1981); Hee Yng Ahn v. INS, 651 F.2d 1285 (9th Cir.1981); SantanaFiguero v. INS, 644 F.2d 1354 (9th Cir.1981); Tovar v. INS, 612 F.2d 794 (3d Cir.1980); Urbano de Malaluan v. INS, 577 F.2d 589 (9th Cir. 1978).