finding BIA abused its discretion in denying a motion to reopen based on “extreme hardship,” where BIA failed to note the “most salient” evidence presented by Blanco
How later courts described this case
- finding BIA abused its discretion in denying a motion to reopen based on “extreme hardship,” where BIA failed to note the “most salient” evidence presented by Blanco
- holding that BIA abused its discretion in denying motion to reopen
- finding an abuse of discretion where the Board decided a motion to reopen without considering the record before it
- predating the IIRIRA amendments of 1996
Written by the judges who cited it.
The opinion
VAN GRAAFEILAND,
Circuit Judge, concurring separately:
I concur in the result reached by my colleagues, but I do so with reservations. In the first place, I depart from my colleagues’ description of the Board’s ruling as a “compendium of errors.” The Board considered Blanco’s claim of hardship as it related to her application for suspension of deportation and rejected it. This was not a “compendium of errors.”
Secondly, I am concerned about the prece-dential effect of my colleagues’ treatment of generalized violence as the equivalent of “extreme hardship.” Civil unrest and generalized violence are conditions endemic to much of Central America. They do not justify a claim of extreme hardship by every reluctant deportee to one of these countries. Before Blanco can qualify for suspension from deportation, she must establish that her hardship would be different and more severe than would that of other illegal aliens returned to the same milieu. See INS v. Jong Ha Wang, 450 U.S. 139, 145 , 101 S.Ct. 1027, 1031-32 , 67 L.Ed.2d 123 (1981). See also Vargas v. INS, 826 F.2d 1394, 1397 (5th Cir.1987); Marquez-Medina, 765 F.2d 673, 676-77 (7th Cir.1985). This is not what Blanco claimed or proved. Indeed, in the motion to reopen Blanco’s case and provide her a suspension of deportation hearing, her counsel, quoting Senator DeConcini stated that Mrs. Blanco and her children “like thousands of other Salvadorans, ‘have been the innocent victims of war, random violence, and civil strife in their homeland.’ ” Moreover, in the decision of the Board of Immigration Appeals, the Board stated that Mrs. Blanco was “fleeing general conditions of violence” and that “at no time has [she] been directly or indirectly threatened or harmed by anyone in El Salvador on account of her political opinion, nor has she established a pattern or practice of persecution of groups of persons situated similarly to [her].” We are required to give substantial deference to the Board’s findings of fact. If they are supported by reasonable, substantial and probative evidence on the record considered as a whole, they are conclusive. Maikovskis v. INS, 773 F.2d 435, 446 (2d Cir.1995); Sarkis v. Sava, 599 F.Supp. 724, 726 (E.D.N.Y.1984).
I am content with my colleagues’ finding of extreme hardship but not on the ground that her exposure to violence was more severe than that of other Salvadoran refugees.