Yasser Abdulrahim Shooshtary v. Immigration & Naturalization Service

REINHARDT, Circuit Judge,

dissenting:

In finding Mr. Shooshtary ineligible for relief, the Board of Immigration Appeals (BIA) gave short shrift to the key question: whether Mr. Shooshtary’s wife or children would experience extreme hardship if he were deported. Because the BIA’s decision fails adequately to consider the specific circumstances that underlie his claim, I dissent.

At his deportation hearing, Mr. Shooshtary testified that his family was very close, and that his children would be devastated if separated from him. Furthermore, he testified, his wife would not be able to keep up the payments on their home or otherwise support their family if he were deported. It was then stipulated that Mrs. Shooshtary would testify to the same effect. She also testified that, if the entire family were forced to leave the country, their fives would be ruined. Nevertheless, the Immigration Judge, with only the barest pretense of analyzing the individual circumstances involved, denied Mr. Shooshtary’s request for relief and ordered him deported to Great Britain. The BIA affirmed the immigration judge’s decision.

Mr. Shooshtary’s wife and children are now United States citizens and were lawful permanent residents at the time of the hearing. Under 8 U.S.C. § 1182 (h)(1)(B), Mr. Shooshtary would be eligible for relief if his deportation would cause his wife, his son, or his daughter extreme hardship. In making its extreme hardship determination, the BIA must state its reasons and show that it has properly considered all relevant factors. Hassan v. INS, 927 F.2d 465, 467 (9th Cir.1991); Batoon v. INS, 707 F.2d 399, 401 (9th Cir.1984). Cursory, summary or eonelusory statements are inadequate, because the determination of hardship depends on the specific circumstances of each case. Sullivan v. INS, 772 F.2d 609, 610 (9th Cir.1985); Hassan, 927 F.2d at 468 .

Unfortunately, the majority, in as cursory an opinion as that of the BIA, ignores the Board’s failure to consider the hardship that the various members of Mr. Shooshtary’s family, including the children, might experience. In cases concerning a parent of citizens or permanent residents, the BIA must consider both the hardship that will result if children follow a deported parent to a new country and the hardship that will result if the family is separated. Cerrillo-Perez v. INS, 809 F.2d 1419, 1422-23 (9th Cir.1987). Here, the BIA paid insufficient attention to the first issue and none at all to the second. It merely stated that moving to a new country after several years in the United States “represent[s] the type of inconvenience and hardship experienced by the families of most aliens in the respondent’s circumstances.” Such summary, general, and non-individualized statements “fail adequately to reveal the BIA’s reasoning and constitute an abuse of discretion.” Saldana v. INS, 762 F.2d 824, *1053 828 (9th Cir.1985) (citing Zavala-Bonilla v. INS, 730 F.2d 562, 568 (9th Cir.1984)); see also Prapavat v. INS, 662 F.2d 561 (9th Cir.1981) (per curiam) (reversing BIA decision that failed to give individualized consideration to claims of financial hardship). The BIA’s failure to make individualized determinations as to the hardship that Mr. Shoosh-tary’s wife and children would suffer if the entire family were forced to emigrate is contrary to the requirement established by our cases. See Jara-Navarrete v. INS, 813 F.2d 1340 (9th Cir.1986) (reversing BIA judgment because it contained only a single-sentence determination that the petitioner’s children would not suffer extreme hardship).

Moreover, the BIA’s opinion clearly errs in its “analysis” of the economic hardship that Mr. Shooshtary’s family would suffer if he were to be separated from his wife and two children. The BIA’s decision asserts that Mr. Shooshtary had produced “no evidence” regarding the inadequacy of his wife’s income to support the family alone. That assertion is directly contrary to the record. In fact, Mr. Shooshtary testified that his wife, who works in a delicatessen, would be unable to make payments on their house or otherwise support the family by herself. Furthermore, the hearing officer accepted an offer of proof that Mrs. Shooshtary would testify that she would be unable to support herself and the couple’s two children in the United States if her husband were deported.

Even if the BIA had properly considered the economic consequences of separation on the family as a whole, however, we would be required to reverse — because the BIA failed to meet its obligation to make individualized determinations of how separation from their father would affect the two children. Mr. Shooshtary is the parent of a son, Sam, and a daughter, Amanda. Under Cerrillo-Perez , the BIA must “consider the specific circumstances” of each of these children and reach “an express and considered conclusion as to the effect of those circumstances upon [them].” Id. at 1426 . Here, the BIA completely neglected this responsibility by failing to give any individual consideration to the hardships that either Sam or Amanda would experience.

In failing to discuss the individual circumstances of Mr. Shooshtary’s permanent resident children, the BIA overlooked his specific testimony to the effect that the two children would suffer gravely from his absence. At the hearing, Mr. Shooshtary testified that his son and daughter were nine years old, twins, and in the fourth grade. Mr. Shooshtary described his family as “very, very close,” and his testimony showed him to be deeply involved in his children’s education. Both children had repeated the first grade upon arriving in the United States but, at Mr. Shooshtary’s urging, their teachers permitted the children to skip the second grade. At his hearing, Mr. Shooshtary reported that his son and daughter were doing well in school -with B + grades. He further testified that breaking up the family would have a drastic effect on them — on “their brains, their thoughts, their education, their hearts too.” Mr. Shooshtary said that, if separated from their father, his “son would cry ... day after day calling for me, my daughter too.”

Unfortunately, the BIA’s decision does not consider any of this evidence, and fails to address the question whether the children would suffer significantly or at all — emotionally, educationally, or socially — if separated from their father. Thus, contrary to the majority’s conclusion, the Board did not consider all the circumstances put forward by Mr. Shooshtary. Nor, of course, contrary to the majority’s contention, did Mr. Shoosh-tary’s testimony consist solely of vague generalities. The BIA (like the majority) wholly ignores Mr. Shooshtary’s direct and specific testimony regarding his children, and utterly fails to undertake the individualized consideration of the consequences of separation on each child, as Cerrillo-Perez requires.

The BIA failed properly to consider the relevant factors bearing on the issue of extreme hardship, a failure that the majority erroneously excuses. I would reverse the BIA’s decision and remand for a proper review.