Dong Hyung Lee v. Immigration & Naturalization Service

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).

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…

Dong Hyung Lee appeals an order of the Board of Immigration Appeals which denied relief from a deportation order.

Lee, a native of Korea, entered the United States in 1965 as a visitor. The following year, he applied for permanent residence but his application was denied. In 1969, Lee was ordered to appear before a deportation hearing, but failed to do so. In 1971, Lee’s wife entered the United States as a student, and in 1972 he again sought adjustment of his status. His request was again denied, and he was ordered deported. Lee did not seek voluntary departure, nor did he report for deportation. He appealed. In August 1973, Lee’s wife gave birth to an American citizen. Lee bought a store and his income increased. In 1974, Lee applied for a suspension of deportation under Section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254 (a)(1), and sought to reopen his deportation proceedings. He relied upon the grounds that he had lived in this country for over seven years, was of good moral character, was the father of an American-born child, was the proprietor of his own business, and that deportation would create extreme hardship to his family.

In March 1975 Lee’s…

550 F.2d 554 Dong Hyung LEE, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 75-2260. United States Court of Appeals, Ninth Circuit. March 24, 1977. Jack T. Price, Los Angeles, Cal., for petitioner. William D. Keller, U. S. Atty., Los Angeles, Cal., for respondent. On Petition for Review of Deportation Order of the Immigration and Naturalization Service. Before BARNES and GOODWIN, Circuit Judges, and TAKASUGI, * District Judge. GOODWIN, Circuit Judge: 1 Dong Hyung Lee appeals an order of the Board of Immigration Appeals which denied relief from a deportation order. 2 Lee, a native of Korea, entered the United States in 1965 as a visitor. The following year, he applied for permanent residence but his application was denied. In 1969, Lee was ordered to appear before a deportation hearing, but failed to do so. In 1971, Lee's wife entered the United States as a student, and in 1972 he again sought adjustment of his status. His request was again denied, and he was ordered deported. Lee did not seek voluntary departure, nor did he report for deportation. He appealed. In August 1973, Lee's wife gave birth to an American citizen. Lee bought a store and his income…