Jong Ha Wang and Kyung Hwa Wang v. Immigration & Naturalization Service

The Wangs petition for review of the denial of their motion to reopen deportation proceedings to allow them to apply for suspension of deportation under § 244 of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1254 . The only issue raised by the petition is whether in their motion to reopen the Wangs made a prima facie showing of extreme hardship as required by the Act. We chose to take this case en banc because there has been some confusion as to what an alien is required to show and what the Board of Immigration Appeals (the Board) is required to consider in cases where the questions are whether the alien is (1) eligible for and (2) merits suspension of deportation.

In moving to reopen deportation proceedings to apply or in applying for suspension of deportation an alien must present facts that, if proved, would make him eligible for relief. In ruling on a motion or on an application the Board must consider all of the facts of the case and then exercise its discretion.

We reverse the order of the Board and remand for a hearing on the Wangs’ eligibility for suspension of deportation and for the exercise of the Board’s discretion.

I. Statement of the Case

The Wangs,…

(with whom KENNEDY, Circuit Judge, concurs) (Concurring only with the result to reverse and remand and dissenting from the opinion of the majority):

The most superficial reader of the majority’s opinion will ask himself why the Wangs either (1) automatically should not be entitled to suspension of their deportation proceedings upon a showing in the hearing that the facts are as set forth in their motion or (2) should not be entitled to a hearing at all. To provide a hearing to establish the prima facie case set forth in the motion that will not compel the Attorney General to suspend the deportation proceedings strongly suggests that the hearing serves primarily objectives not related to the issue of suspension. There exists another possibility, however. It is that the refusal to reopen is because the Board of Immigration Appeals *1350 (BIA) does not accept the facts to be as alleged in the motion. Under those circumstances to deny the alien a hearing is contrary to ordinary notions of fair play and due process.

The difficulty with this case is that it is not clear why the BIA refused to reopen the deportation proceedings. After summarizing the facts set forth in the Wangs’…

622 F.2d 1341 Jong Ha WANG and Kyung Hwa Wang, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 78-1243. United States Court of Appeals, Ninth Circuit. June 4, 1980. Roger J. Gleckman, Gleckman & Prescott, Los Angeles, Cal., for petitioners. Carolyn M. Reynolds, Asst. U. S. Atty., Los Angeles, Cal., for respondent. On Petition to Review a Decision of the U.S. Immigration & Naturalization Service. Before WRIGHT, CHOY, GOODWIN, WALLACE, SNEED, KENNEDY, ANDERSON, HUG and TANG, Circuit Judges. * CHOY, Circuit Judge: 1 The Wangs petition for review of the denial of their motion to reopen deportation proceedings to allow them to apply for suspension of deportation under § 244 of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1254 . The only issue raised by the petition is whether in their motion to reopen the Wangs made a prima facie showing of extreme hardship as required by the Act. We chose to take this case en banc because there has been some confusion as to what an alien is required to show and what the Board of Immigration Appeals (the Board) is required to consider in cases where the questions are whether the alien is (1)…

dissenting.

The majority opinion is likely to shift the administration of hardship deportation cases from the Immigration and Naturalization Service to this court. The majority purports to hold only that the I&NS must *1352 grant the alien in this case a hearing. The opinion goes on, however, to supply a fairly strong indication how the hearing should turn out.

By using the majority opinion as a blueprint, any foreign visitor who has fertility, money, and the ability to stay out of trouble with the police for seven years can change his status from that of tourist or student to permanent resident without the inconvenience of immigration quotas. This strategy is not fair to those waiting for a quota.

The operations of the I&NS in hardship cases may or may not have followed the intent of Congress. The I&NS may not have satisfied the judges of this court; but I do not believe that judicial dissatisfaction with past performance justifies the change in direction which this court is taking. Congress conferred upon the agency a broad discretion. I would leave that discretion undisturbed.

dissenting:

I dissent from the majority opinion for reasons set forth in my dissent to Villena v. INS, 622 F.2d 1352 at 1362 .