dissenting:

I respectfully dissent.

Petitioner seeks review of an order of the Board of Immigration Appeals (herein “Board”) denying his motion to reopen deportation proceedings. Said motion was filed for the specific purpose of securing an adjustment of his status for permanent residence under 8 U.S.C. § 1254 (a)(1). 1

The pertinent provisions of section 1254(a)(1) deal with the issue of whether the deportation of petitioner would result in extreme hardship to him, to his wife or to his child, a citizen of the United States.

The Board determined that petitioner’s motion to reopen proceedings rested solely upon the facts that he has met the seven years physical presence requirement and is the father of a United States Citizen.

Standard for Review

In deciding any cases under 8 U.S.C. § 1254 (a)(1), the Board is required to make two separate and distinct determinations. Initially, it must decide petitioner’s eligibility under the criteria of § 1254(a)(1). Once decided in the affirmative, the Board is then called upon to exercise its discretion as to whether such petitioner is entitled to relief. Gordon and Rosenfield, § 8.14, pp. 8-94 and 95. The Supreme Court noted in *557 Foti v. Immigration and Naturalization Service, 375 U.S. 217 , 84 S.Ct. 306 , 11 L.Ed.2d 281 ,

In reviewing motions to reopen, many cases have held that the appellate court is limited to determining whether the Board abused its discretion. Santiago v. Immigration and Naturalization Service, 526 F.2d 488, 489, n. 3 (9th Cir. 1975); Loza-Bedoya v. Immigration and Naturalization Service, 410 F.2d 343, 346 (9th Cir. 1969). This standard is correct for the Board’s ultimate discretionary decision. However, the standard in reviewing the initial issue of eligibility appears to be the substantial evidence test (8 U.S.C. § 1105a(4)) as noted in Foti, supra, 375 U.S. at 228 , 84 S.Ct. 306 .

Facts

In May, 1965, petitioner, a native of Korea, was admitted to the United States as a professional musician under Sec. 101(a)(15)(H)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101 (a)(15)(H)(i). In 1966 his application for permanent resident status was denied. In 1969 he was summoned to a deportation hearing for having remained longer than permitted. Petitioner failed to appear. For a year and eight months after his entry he played with a musical troupe and performed various and sundry jobs. Next, he was employed as a teacher at the University of Washington and then as a glass worker, stacking and checking bottles. On June 29, 1971, his spouse entered the United States as a student. In that year, he purchased the first of two wig stores. One such store was burned in a fire and the other was damaged during the rioting in East Los Angeles. Thereafter, petitioner obtained employment as a retail clerk at a “7-11” Store for $800.00 per month.

In 1972 he again sought adjustment of his status. A hearing was held and petitioner was found to be deportable and deportation was ordered. Petitioner appealed to the Board of Immigration Appeals. The appeal was denied by the Board.

In August, 1973, a child was born to petitioner and his spouse. This birth occurred after the original deportation order.

Ultimately, petitioner purchased a “7-11” Store in Montebello, California. Between February and September, 1974, petitioner averaged earnings of some $3,000 monthly and had gross earnings of some $215,000 for that year.

In September, 1974, petitioner applied for a suspension of deportation under Section 244(a)(1) Immigration and Nationality Act, 8 U.S.C. § 1254 (a)(1), and sought to reopen his deportation proceedings on the grounds he had lived in this country for over seven years, was of good moral character, was the father of an American-born child, was a proprietor of his own business and that deportation would create extreme hardship to his family. In March, 1975, petitioner’s motion to reopen deportation proceedings was denied on the basis that the petitioner did not establish a prima facie case. In April, 1975, another motion to reopen deportation was filed with respondent. In May, 1976, said motion was denied. In June, 1975, petitioner filed the instant petition for review to this court under Section 106 of the Immigration and Nationality Act, 8 U.S.C. § 1105a to reopen proceedings.

Discussion

In Yong v. Immigration and Naturalization Service, 459 F.2d 1004 (9th Cir. 1972) the court reversed an order denying petitioner’s application for suspension of depor *558 tation pursuant to 8 U.S.C. § 1254 on the grounds that the determination by the inquiry officer of the bases for the petition was in error. The officer had determined that the sole basis of petitioner’s hardship was economic when in fact said petition alleged spousal separation as an additional factor of hardship.

In the instant case, the Board made a determination that the sole basis for this petitioner’s motion was that he had met the seven years physical presence requirement and is the father of a United States citizen. However, from the record, it becomes obvious that the appeal was based on substantially more. Additional issues were presented relative to severe financial repercussions, family separations and the difficulty in obtaining visas. In essence, the determined bases by the Board did not conform to the claimed basis of petitioner.

In viewing the majority opinion, it appears that the only reading which would be compatible with Yong is to recognize the Board’s error in not considering the entire bases raised by the petition in this case but finding that the omission of the other bases was harmless or insignificant under section 1254(a)(1).

The minority feels that the Board’s ruling in denying petitioner’s motion to reopen was not supported by “substantial evidence”, at least under the “totality of the circumstances” theory, if not under the single criteria approach utilized by the majority-

A review of each claimed basis followed by a discussion of the “totality of the circumstances” will be helpful.

Parentage and Family Separation

Concededly, there are ample cases in other circuits which state that an alien illegally present in the United States cannot gain a favored status occasioned merely by birth of his citizen child. Gonzalez-Cuevas v. Immigration and Naturalization Service, 515 F.2d 1222 (5th Cir. 1975); see Mendez v. Major, 340 F.2d 128 (8th Cir. 1965). To the extent that such decisions hold that parentage of a United States Citizen is not a factor to consider, I strongly disagree. Section 1254(a)(1) expressly provides that consideration of extreme hardship should be applied “. . . to the alien or to his spouse, parent or child, who is a citizen of United States . . (Emphasis added). The American citizen child has an absolute right to remain in this country. This right, because of his tender age, cannot be exercised meaningfully without allowing his parents to remain here as well. In essence, the Board’s decision thrusts an extremely difficult choice upon the child’s parents if deportation is expected — a choice between the child’s greater potential for health and general material welfare in the United States and the parental sustenance and guidance he would receive from his parents in Korea.

In U. S. ex rel. Partheniades v. Shaughnessy, 146 F.Supp. 772 (S.D.N.Y.1956), a refusal of the Board to consider the superi- or quality of education available in the United States as compared to those offered in Greek schools, coupled with the other factors, were sufficient to forestall deportation of the child’s parents. The Board was also reversed in Yong, supra, where the deportation of an illegal alien wife from her husband, lawfully in the United States, was imminent. The separation of parents from their child as in the case at bar is no less painful or inconsequential. See also, Acosta v. Landon, 125 F.Supp. 434 (S.D.Cal.1954).

Economic Hardship and Availability of Visa

Prior to the 1962 Amendment to § 1254(a)(1), the standard for granting a discretionary stay of deportation was “. exceptional and extremely unusual hardship. . . . ” Under this guide the District of Columbia Circuit in Asikese v. Brownell, 97 U.S.App.D.C. 221 , 230 F.2d 34 (1956) held that the fact an illegal alien was forced to sell his luncheonette was insufficient to warrant a stay from deportation.

Llacer v. Immigration and Naturalization Service, 388 F.2d 681 (9th Cir. 1968), the first case to interpret § 1254(a)(1) in its *559 present form, is generally and freely cited as standing for the proposition that economic hardship per se falls short of the extreme hardship standard. A reading of Llacer reveals that its holding merely states that extreme hardship is not “. only the usual difference in economic standards of living which exist between the United States and other countries abroad. . ” Id., at 681 . The court in Llacer was merely discussing economic disadvantage rather than economic hardship.

In Kasravi v. Immigration and Naturalization Service, 400 F.2d 675 (9th Cir. 1968) the court held that the unavailability of employment in one’s chosen occupation upon return to one’s native country was insufficient to constitute extreme hardship. I believe the Kasravi decision was dealing more with economic disadvantage than economic hardship. Fong Choi Yu v. Immigration and Naturalization Service, 439 F.2d 719 (9th Cir. 1971); Nishikage v. Immigration and Naturalization Service, 443 F.2d 904 (9th Cir. 1971); and Blanco-Dominguez v. Immigration and Naturalization Service, 528 F.2d 382, 383 (9th Cir. 1975) cite Llacer and each other without a recitation of specific facts which could lead the reader to a conclusion of whether there was economic hardship. Pelaez v. Immigration and Naturalization Service, 513 F.2d 303 (5th Cir. 1975) held that difficulty in finding employment and having to return to a country of a lower standard of living was not extreme hardship. Again, the decision is viewed to mean relative economic disadvantage as opposed to economic hardship. Consistent with the cases heretofore cited, economic disadvantage, absent any other factors, would fall short of the extreme hardship standard. In dealing with economic hardship per se a determination should be made on a case by case basis.

The case at bar potentially presents something quite beyond these modest economic inconveniences and merits at least a hearing. A review of petitioner’s history since his entry should convincingly establish the vast distinction. The hardship petitioner will experience if deported is much greater than the mere reduction of the standard of living attendant upon returning to his native country in Llacer, supra, the sale of a luncheonette in Asikese, supra, or the exclusion from one’s chosen profession in Kasravi, supra. Once petitioner is forced to leave the United States, his opportunity to secure a visa will also be severely curtailed since non-preference visa numbers are oversubscribed for Korea. See U.S. State Dept., “Availability of Immigrant Visa Numbers for March, 1976”; Matter of H-, 5 I & N Dec. 416 -418; Matter of Z-, 5 & N Dec. 419 — 420. Petitioner’s present circumstances cannot be divorced from the history of his efforts to attain his current status. Ten years of labor advancing himself from a wandering minstrel to a successful independent proprietor will perish instantaneously upon his deportation. To say that these circumstances, coupled with the separation from his three year old son, do not reach the threshold of extreme hardship is to blind oneself to the reality of human aspiration and to take refuge in verbal illusions. I do not reach the ultimate question of whether petitioner’s deportation should be permanently stayed. However, I hold that petitioner had established an overwhelming showing of extreme hardship.

We must take hold of the fact that “extreme hardship” is a standard of degrees which range from mild to extreme. A single basis which may not in and of itself seek equation with the standard of “extreme hardship” can have greater relative weight in the scale of hardships when coupled with other factors which by themselves may also not reach the requisite threshold.

We are called upon to decide the petition of an entire individual. To seek out a claimed basis, analyze same in isolation from the other bases, and reach a conclusion is not, in my opinion, an analysis of the entire individual nor a fair assessment of the circumstances surrounding such an individual.

The case should be ordered remanded for hearing before the Immigration Law Judge consistent with the views expressed herein.

. Section 1254 provides, inter alia, as follows: