PETITION FOR REVIEW BOARD OF IMMIGRATION APPEALS
Gibbons, Hunter and Rosenn, Circuit Judges. Gibbons, Circuit Judge, dissenting.
1. Petitioner Felix David Amezquita-Soto applied to the Immigration and Naturalization Service (the "Service") for suspension of deportation pursuant to section 244(a)(1) of the Immigration and Nationality Act of 1952 (the "Act"), 8 U.S.C. § 1254(a)(1) (1976 & Supp. V. 1981). He now petitions for review of the order of the Board of Immigration Appeals (the "Board") affirming the denial of his application. We will deny the petition for review.
2. Petitioner is a citizen of Peru, having been born there in 1953. On April 21, 1972, petitioner entered the United States as a nonimmigrant student and attended high school for two years in Passaic, New Jersey. After his visa expired in 1974, petitioner remained in the United States illegally.
3. Petitioner met an American woman and lived with her for two and one-half years. In 1975 their daughter was born in Passaic. Petitioner acknowledged paternity on the birth certificate, but he never married the child's mother.*fn1 The mother eventually went to Pennsylvania, married, and ceased to have any contact with petitioner or their child.
4. Petitioner's daughter has been raised since birth by her maternal grandmother. The child continues to live with her grandmother in Passaic, while petitioner lives with his sister a few blocks away. Despite their proximity petitioner visits his daughter only on weekends and sometimes during the week if the grandmother has other plans. Although he has produced no evidence of the extent of his contribution, petitioner apparently helps to support the child. The immigration judge found "great love and attachment" between them. Certified Administrative Record at 20 ("Cert. Admin. Rec.").
5. On July 13, 1979, the service notified petitioner that because he had overstayed his visa he was subject to deportation under section 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2) (1976). Petitioner conceded his deportability but requested a suspension of his deportation pursuant to section 244(a)(1).*fn2 In his application petitioner alleged that his deportation would result in extreme hardship to himself and to his citizen child.*fn3
6. On December 17, 1979, an immigration judge held a deportation hearing pursuant to section 242(b) of the Act, 8 U.S.C. § 1252(b) (1976 & Supp. V 1981). Petitioner introduced evidence of his continuous presence in the United States, and of his good moral character. Petitioner also testified that he would suffer extreme hardship if deported because he would choose to leave his daughter behind and would miss her very much.*fn4
7. Petitioner also contended that his citizen child would suffer extreme hardship. Both he and the grandmother testified that petitioner visited and supported his daughter, and both felt that the child would greatly miss petitioner. The Service argued, however, that the immigration judge could not consider the hardship to petitioner's daughter because she is illegitmate under the laws of New Jersey and therefore is not his "child" within the meaning of section 244(a)(1).*fn5 Petitioner urged in response that New Jersey no longer makes any distinction between legitimate and illegitimate children, and that his daughter must therefore be considered legitimate under Chin Lau v. Kiley, 563 F.2d 543 (7th Cir. 1977).
8. The immigration judge found that the petitioner had been continuously present in the United States for over seven years, and was of good moral character. Turning to the issue of extreme hardship, the judge decided that he could consider the hardship to petitioner's daughter, saying:
I have entertained respondent's applications regarding the status of the child. I do not feel that this is an issue before this court at this time whether the child is legitimate or illegitimate. The only issue before me is whether the respondent has established the extreme hardship.
Cert. Admin. Rec. at 21. The judge then looked at the facts to see if either petitioner or his child would suffer extreme hardship. The judge acknowledged that petitioner would be separated from his daughter for some time,*fn6 and that separation might bring some deprivations. The judge emphasized, however, that "the child has lived with her grandmother since birth" and that she "is being cared for by her grandmother at this time." Cert. Admin. Rec. at 22. He consequently found that petitioner had failed to show that either he or his daughter would suffer extreme hardship.*fn7 The judge therefore held that petitioner was not eligible for suspension of deportation under section 244(a)(1). He denied petitioner's application but granted him the right of voluntary departure within sixty days.
9. Petitioner appealed to the Board of Immigration Appeals, claiming that both he and his child would suffer extreme hardship if he were deported. In his brief petitioner asserted that the hardship to his daughter had to be considered even though she had been born out of wedlock. In addition he argued that the immigration judge had failed to give adequate weight to the emotional impact of separation in determining whether either he or his daughter would suffer extreme hardship.*fn8 The Service did not file a brief in opposition.
10. The Board agreed with the immigration judge's finding that petitioner had not shown extreme hardship to himself or to his daughter. At the outset the Board pointed out that any possible hardship to petitioner's daughter could not be considered because she was not his "child" within the meaning of section 244(a)(1). Finding that under New Jersey law a child born out of wedlock could be legitimized only by the subsequent marriage of her parents, see N.J. Stat. Ann. § 9:15-1 (West 1976), the Board noted that it was powerless to alter the terms and conditions set by Congress. The Board then stated:
Even assuming, arguendo, that the effect of [petitioner's] deportation on this child could be considered, we conclude that [petitioner] has failed to establish that she would suffer extreme hardship to make him statutorily eligible for suspension of deportation. Although the child may know [petitioner] as her father, she has been residing with her maternal grandmother who cares for her on a daily basis. While the child may have to adjust to not seeing [petitioner] on weekends, we are not convinced that his return to Peru would amount to the degree of hardship contemplated under section 244(a)(1) of the Act. In contrast to the child in Tovar v. INS, 612 F.2d 794 (3d Cir. 1980), who had been raised since infancy by the applicant for suspension and who would not have had any other family members to care for him upon the deportation of the applicant, [petitioner's] daughter has been raised by her grandmother with whom she is familiar and may remain without a drastic change in her circumstances. We do not believe that Congress intended to suspend the deportation of any alien whose child may experience some difficulty from the separation, but who has been raised by and could remain with a close family member familiar to the child.
11. The Board also concluded that petitioner had not shown that because of his separation from the child he would suffer extreme hardship within the meaning of section 244(a)(1):
[Petitioner's] contact with the child has been limited to his weekend visits at her grandmother's home, notwithstanding the fact that he lives only two blocks away from her. We do not find that these weekend visits and the sporadic visits between [petitioner] and the child during the week demonstrates deep affection which, if eliminated, would cause ...