# Anthony Corbett Sullivan v. Immigration and Naturalization Service > Court of Appeals for the Ninth Circuit · September 30, 1985 · 772 F.2d 609 URL: https://www.frixlaw.com/law-library/cases/9473958 ## Case - **Full name:** Anthony Corbett SULLIVAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** September 30, 1985 - **Citations:** 772 F.2d 609; 38 Empl. Prac. Dec. (CCH) 35,735; 1985 U.S. App. LEXIS 23387 - **Precedential status:** Published - **Opinion:** Dissent by Circuit - **Judges:** Pregerson, Chambers, Kennedy - **Cited by:** 16 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/9473958 ## Opinion text PREGERSON Circuit, Judge, dissenting. I dissent. For the reasons stated below, I believe the BIA abused its discretion in denying Sullivan’s application for suspension of deportation. As the majority correctly notes, immigration authorities may construe “extreme hardship” narrowly in cases concerning suspension of deportation. INS v. Wang, 450 U.S. 139, 144-45 , 101 S.Ct. 1027, 1031 , 67 L.Ed.2d 123 (1980) (per curiam). However, “[w]hen important aspects of the individual claim are distorted or disregarded, denial of relief is arbitrary.” Santana-Figueroa v. INS, 644 F.2d 1354, 1356 (9th Cir.1981). See also Zavala-Bonilla, 730 F.2d 562, 567 (9th Cir.1984) (the BIA must consider all circumstances relevant to the hardship determination); Contreras-Buen-fil v. INS, 712 F.2d 401, 403 (9th Cir.1983) (per curiam) (same). Further, when the BIA employs conclusory statements in dismissing an alien’s claims, a court may decide that the BIA abused its discretion by failing to “ ‘give reasons which show that it has properly considered the facts which bear on its decision.’ ” Prapavat v. INS, 662 F.2d 561, 562 (9th Cir.1981) (per curiam) (quoting Mejia-Carrillo v. INS, 656 F.2d 520, 522 (9th Cir.1981)). See also De La Luz v. INS, 713 F.2d 545, 546 (9th Cir.1983) (per curiam) (BIA must view situation realistically). Here, the BIA failed to comply with these guidelines. And, in concluding that the BIA adequately considered each of Sullivan’s alleged hardships, I believe the majority overlooks these requirements as well. Sullivan alleged that his deportation would result in “extreme hardship” because of a number of unique and special circumstances. Sullivan alleged extreme personal and emotional hardship due to his forced separation from Adams, whom he “married” and has lived with continuously since 1972. Sullivan contended that information from the Australian government suggested that Adams, a car rental agent, would not be eligible to become a permanent resident of Australia. Moreover, even *612 if Adams could somehow gain permanent residence in Australia, he testified that his ethnic background, Filipino, probably would make it difficult for him to get a job in Australia due to racial prejudice. Sullivan further stated that he has no community ties in Australia whatsoever and that his family members who live in Australia have ostracized him. Finally, Sullivan contended that the notoriety his case has attracted in Australia — a country allegedly intolerant of open homosexuality — would severely hamper his employment prospects there. On the other hand, he points out that his extensive community ties and good reputation for community service in the United States enhance his employment prospects here. The majority apparently overlooks the fact that the BIA distorted or disregarded Sullivan’s hardship claims with abstract, generalized statements and failed to evaluate Sullivan’s special circumstances realistically as required by the Ninth Circuit authority cited above. The BIA interpreted Sullivan’s claim that deportation and consequent separation from Adams would cause him extreme personal and emotional hardship as mere “general hardship and emotional adjustments” and concluded: Separation from those upon whom one has become attached or dependent is common to most aliens who have spent a considerable amount of time in the United States; it is not the type of hardship, absent special or unique circumstances, Congress intended to remedy when it enacted section 244(a)(1). The BIA’s conclusory treatment of Sullivan’s situation “gave no individualized consideration to the particulars” of the case. See Prapavat, 662 F.2d at 562 . The BIA gave no recognition to the strain Sullivan would experience if he were forced to separate from the person with whom he has lived and shared a close relationship for the past twelve years. This failure to recognize Sullivan’s emotional hardship is particularly troublesome because he and Adams have lived together as a family. See Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir.1983) ([T]he most important single factor in determining “extreme hardship” may be the separation of the alien from “family living” in the United States); Ramirez-Gonzalez v. INS, 695 F.2d 1208, 1211 (9th Cir.1983) (“The breakup of family ties is a relevant factor to consider in determining hardship.”); Urbano de Malaluan v. INS, 577 F.2d 589, 594 (9th Cir.1978) (same). The BIA also gave short shrift to Sullivan’s assertions of employment difficulty and ostracism by his family and former friends in Australia. The BIA concluded that “[t]he lack of job opportunities or the existence of a lower standard of living in the country of an alien’s birth or residence” do not constitute extreme hardship, and that Sullivan’s readjustment to life in his native country would be “the type of hardship experienced by most aliens who have spent time abroad.” These statements distort Sullivan’s contentions. Sullivan did not contend that Australia had “fewer job opportunities” or a “lower standard of living” — but rather that he, as a highly publicized homosexual, would be forced to find employment in a country alleged to be much more intolerant of homosexuals than the United States. Sullivan’s readjustment to life in Australia would be quite contrary to that of “most aliens.” As Sullivan points out, most deported aliens do not return to their native country as virtual outcasts from their friends and family. And, most deported aliens can return to their native lands with their closest companions. But Sullivan would be precluded from doing so because Adams allegedly would not be permitted to emigrate to Australia. 1 *613 Rather than viewing Sullivan as an individual human being, the BIA “tacitly invoked a floodgates argument by simply assuming that ‘most deported aliens’ would experience the same degree of hardship as [Sullivan]. This approach, approved of by the majority, ignores the rule that each hardship case ‘must be decided on its own facts.’ ” Prapavat, 662 F.2d at 562 , (quoting Banks v. INS, 594 F.2d 760, 762 (9th Cir.1979)). Finally, I disagree with the majority’s support of the BIA’s conclusion that it was not until after 1974, when Sullivan was out of legal status, that he acquired the relationship and community and family ties he relied on to support his suspension application. Again, the BIA distorted the facts. Sullivan presented uncontradicted evidence that he met Adams in 1971 and began living with him in 1972. While Sullivan’s community ties and relationships were certain to increase over the years, it is misleading to suggest they did not begin until after he was out of legal status. The BIA also erroneously concluded that because Adams did not fit within a category identified in 8 U.S.C. § 1254 , it was prohibited from considering the hardship Adams would experience if Sullivan were deported. While the BIA may not have been required to consider hardship to Adams, it erred in concluding that it was prohibited from doing so. The BIA may consider the hardship to significant relations not specified in the statute. See Villena v. INS, 622 F.2d 1852 , 1360 (9th Cir.1980) (hardship to an alien’s brother, a United States citizen, should be considered even though siblings are not specifically mentioned in section 1254); Contreras-Buenfil, 712 F.2d at 403 (the board might have considered hardship to the son of the woman with whom the alien was living in the United States). The BIA also failed to consider the adverse consequences of deportation cumulatively in determining whether “extreme hardship” existed. See Prapravat, 662 F.2d at 562 ; Villena, 622 F.2d at 1357, 1359. In evaluating Sullivan’s situation, the BIA appeared to weigh each significant factor independently. The BIA, for example, stated that Sullivan’s separation from his “life partner” would not cause him hardship “sufficient to rise to the level of extreme hardship contemplated by the Act,” that “[t]he lack of job opportunities ... is not synonymous with ‘extreme hardship,’ and that Sullivan’s readjustment to life in Australia would not be “the type of hardship that we have characterized as extreme.” The BIA should have evaluated these factors not in isolation but cumulatively, see Prapavat, 662 F.2d at 562 . Again, the majority overlooks this defect. For the foregoing reasons, I would remand this matter to the BIA for further consideration in harmony with Ninth Circuit authority. . The BIA also should have factored Sullivan’s extensive community service into its hardship determination. See Villena v. INS, 622 F.2d 1352, 1357 (9th Cir.1980) (en banc) (The Board should consider an alien’s contribution to the community. While the success of the community projects did not depend on Sullivan’s presence, "[the alien’s] involvement in such projects does support his allegation that he has become integrated into the American culture.”). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9473958. Public record. Not legal advice.