PETITION FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS
Before Adams, Van Dusen and Hunter, Circuit Judges.
This is a petition by Domingo Bastidas seeking review by this court of the determination by a special inquiry officer of the Immigration and Naturalization Service, subsequently approved by the Board of Immigration Appeals, that Bastidas was statutorily ineligible for suspension of deportation. Petitioner Bastidas's deportation will result in the permanent separation of Bastidas and his two young children from each other. Because we find that the special inquiry officer gave insufficient consideration to the non-economic hardship which would result from Bastidas's deportation and because the Board of Immigration Appeals relied on a mistaken understanding of the applicable case law in approving the determination of the special inquiry officer, we will vacate the order denying suspension of deportation and remand this case to the Board of Immigration Appeals for further proceedings consistent with this opinion.
Domingo Bastidas is a native and citizen of Colombia who entered the United States on July 27, 1968 as a nonimmigrant visitor authorized to remain in this country until October 30, 1968. On September 27, 1968 his status was changed to that of a nonimmigrant student authorized to stay until November 1, 1972. Bastidas learned English and spent a year studying at the New York Motel and Hotel School where he received degrees in dietetics and hotel management. He has been employed in the field of hotel management since November of 1969 and has been employed as an assistant manager of the William Penn Hotel in Pittsburgh, Pennsylvania, since November of 1975.
On July 21, 1973 Bastidas married Rhoda Day, a United States citizen. The marriage was the first for each of them. They now have two children: a four and a half year old son and a one and a half year old daughter.
On November 21, 1973 Bastidas's wife filed a visa petition on his behalf. The petition was approved on May 23, 1974. However, in response to a divorce action which Bastidas filed against his wife on July 5, 1977, she withdrew the petition which she had filed on his behalf. As a result of the withdrawn petition, Bastidas's application for a change of status to that of a permanent resident was denied and he was ordered to leave the United States by October 30, 1977 without the initiation of formal deportation proceedings. He failed to leave and on November 7, 1977 an order to show cause was issued charging him with being an overstay. At the show cause hearing, which was held on November 21, 1977, Bastidas conceded deportability but sought to avoid deportation by applying for a suspension of deportation. On November 22, 1977 the special inquiry officer who conducted the show cause hearing denied Bastidas's application for suspension of deportation finding that Bastidas did not establish extreme hardship and was therefore statutorily ineligible for suspension of deportation. On November 16, 1978 the Board of Immigration Appeals dismissed Bastidas's appeal of the decision of the special inquiry officer. Bastidas has petitioned this court for review of the denial of suspension of deportation.
Section 244(a)(1) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1254(a)(1) (1976), authorizes the Attorney General, in his discretion, to suspend the deportation of an alien and to adjust that alien's status to that of an alien lawfully admitted for permanent residence in the case of an alien who applies to the Attorney General for suspension of deportation and who satisfies three statutory requirements. First, the alien must have been present in the United States for a continuous period of not less than seven years immediately preceding the date of the application for suspension of deportation. Second, the alien must show that he is of good moral character. Third, and most important to the disposition of this case, the alien must be a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child who is a citizen of the United States.*fn1
Since the special inquiry officer's determination of statutory ineligibility for suspension of deportation was made in the course of a hearing conducted pursuant to § 242(b) of the Act, 8 U.S.C. § 1252(b) (1976), it is reviewable by this court as a final order of deportation under § 106 of the Act, 8 U.S.C. § 1105a (1976). Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S. Ct. 306, 11 L. Ed. 2d 281 (1963).*fn2
Although the decision whether to suspend the deportation of an individual who satisfies the three statutory requirements of § 244(a)(1) is discretionary and can only be overturned for an abuse of discretion, Foti v. Immigration and Naturalization Service, supra, 375 U.S. at 228, 84 S. Ct. at 313, 11 L. Ed. 2d at 289; Yeung Ying Cheung v. Immigration and Naturalization Service, 422 F.2d 43, 46 (3d Cir. 1970), the determination whether an individual has satisfied the statutory requirements in the first place must be "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Immigration and Nationality Act, § 106(a)(4), 8 U.S.C. § 1105a(a)(4) (1976). Wong Wing Hang v. Immigration and Naturalization Service, supra, 360 F.2d 715, 717 (2d Cir. 1966) (Friendly, J.). See Foti v. Immigration and Naturalization Service, supra, 375 U.S. at 228-29 & n.15, 84 S. Ct. at 313-14 & n.15, 11 L. Ed. 2d at 289-90 & n.15. Under this standard of review, the courts may not determine the substantiality of the evidence by looking solely to evidence which supports a finding, but rather they "must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S. Ct. 456, 464, 95 L. Ed. 456, 467 (1951).
Although the special inquiry officer found that Bastidas had satisfied both the seven year continuous presence and the good moral character requirements of § 244(a)(1), he determined that Bastidas's deportation would not result in extreme hardship either to Bastidas or to Bastidas's wife or young son.*fn3 As a result, he found that Bastidas was statutorily ineligible for suspension of deportation under § 244(a)(1). We need not reach the question whether the special inquiry officer's finding that Bastidas did not establish extreme hardship is supported by substantial evidence on the record considered as a whole, since we find that the special inquiry officer gave insufficient consideration to the non-economic hardship which would result from Bastidas's deportation.
During the deportation hearing, the special inquiry officer asked Bastidas's wife whether it would be a hardship on either her or their child if Bastidas were forced to leave the country. She replied: "I don't believe it will. I've written out a budget. It's going to be tight but I can make it." Cert.Ad.Rec. at 26. Her response clearly demonstrates that she understood hardship for purposes of the question posed to her to include only economic and not emotional hardship. Nonetheless, the special inquiry officer did ...