# Hee Yung Ahn and Kyung Hee Ahn v. Immigration & Naturalization Service

> Court of Appeals for the Ninth Circuit · September 30, 1981 · 651 F.2d 1285

URL: https://www.frixlaw.com/law-library/cases/9468082

## Case

- **Full name:** HEE YUNG AHN and Kyung Hee Ahn, Petitioners-Appellants, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** September 30, 1981
- **Citations:** 651 F.2d 1285
- **Precedential status:** Published
- **Opinion:** Dissent by East
- **Judges:** Trask, Sneed, East
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9468082

## How later opinions describe it (automated extraction)

- noting that "political claims must be considered under [withholding of deportation] rather than [suspension of deportation]"

## Opinion text

EAST, Senior District Judge,
dissenting:
I respectfully dissent from the majority’s opinion. I do not believe the record indicates the Board properly considered the factors of hardship, nor do I read the Board’s prior cases to exclude consideration of economic hardship. Finally, I believe the majority is unduly influenced by the wash of the wake of Wang.
The Board must cumulatively consider the factors of economic hardship presented by an alien. See Villena v. INS, 622 F.2d 1352, 1357 (9th Cir. 1980) (en banc); Urbano de Malaluan v. INS, 577 F.2d 589, 594 (9th Cir. 1978). My reading of the Board’s concluding paragraph, quoted by the majority, supra, does not convince me that the Board considered the hardship factors together. The decision notes that certain detriment “alone” is insufficient, and other hardships are “additional factors to be considered” but not conclusive. This does not assure me that the Board properly reviewed the Ahns’ petition, nor can it assure the Ahns that they received the treatment they were legally entitled to.
The Board also improperly excluded from its consideration potential economic detriment rooted in political sources. I agree with the majority that the fact of political persecution itself should be considered in an application under section 243(h) and not section 244(a)(1). However, the Board has considered politically based sources of economic hardship in considering section 244(a)(1) applications. In re Kojoory, 12 I&N Dec. 215, 217 (BIA 1967), the Board considered and rejected the applicant’s claim that there would be limited economic opportunities due to political persecution before it went on to disallow persecution per se to supplement the insufficient hardship claims of the section 244(a)(1) application. To treat the Ahns’ situation differently is an impermissible sub silentio reversal of its own precedent. 8 C.F.R. § 3.1 (g) (1981). Service v. Dulles, 354 U.S. 363 , 77 S.Ct. 1152 , 1 L.Ed.2d 1402 (1957). To allow the Board to ignore the politically based economic hardship here is procedurally impermissible and pragmatically unfair to the Ahns.
Finally, I believe the majority embraces an over-restrictive reading of the Supreme Court’s decision in Wang. As the majority rightly points out, that court disapproved what it perceived as the Court of Appeals substituting its judgment of extreme hardship for that of the Board, But to recognize and defer to the Board’s discretion in its substantive judgments does not require this court to approve all aspects of the *1289 Board’s decisions. We still must assure ourselves, by de novo review, that the Board’s decision was reached consistently with the Constitution and all applicable laws and regulations. To retreat from a careful consideration of the Board’s procedures would be to retreat from our judicial responsibility to review. I do not read Wang to lighten this obligation. Moreover, we should not decline to remand in the face of procedural defects because we may speculate that the “Board would not change its mind.” If the Board can be allowed to circumvent the established process at its discretion, the essence of its fairness has been lost. I believe the Board in this case has utilized improper procedures tainting its ultimate exercise of discretion. I would remand for further consideration consistent with the applicable statutes, regulations, and rulings of this court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9468082. Public record. Not legal advice.