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Victor Hugo Rodriguez File No. A 22 503 464 and Maria Rodriguez v. Immigration & Naturalization Service

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


March 22, 1985

VICTOR HUGO RODRIGUEZ FILE NO. A 22 503 464 AND MARIA RODRIGUEZ, HIS WIFE FILE NO. A 22 503 454, PETITIONERS
v.
IMMIGRATION & NATURALIZATION SERVICE, RESPONDENT

Petition for Review, Board of Immigration Appeals A 22 503 464 and A 22 503 454.

Author: Hunter

Before: HUNTER, GARTH, and VAN DUSEN, Circuit Judges

MEMORANDUM OPINION OF THE COURT

HUNTER, Circuit Judge:

1. Victor Hugo Rodriguez and Maria B. Rodriguez petition for review of a final order of the Board of Immigration Appeals, Immigration and Naturalization Service ("INS"). This order denied the Rodriguezes' motion to reopen their deportation proceedings in order to present new evidence in support of an application to suspend their deportation. Because we find that the Board did not abuse its discretion in refusing to reopen the Rodriguez's deportation proceedings, we will deny the petition for review.

2. Victor Rodriguez, a citizen of Costa Rico, entered the United States in November 1971 under a visitor's visa that permitted him to remain until December 1971. Soon after his arrival, however, he obtained employment at a cemetery in Trenton, New Jersey, and he failed to depart as required by his visa. In December 1973, Maria Rodriguez, also a citizen of Costa Rica, entered the United States under a visitor's visa that permitted her to remain until January 1974. She joined Victor Rodriguez in Trenton, and she, too, failed to depart as required by her visa. In February 1977, a child, Jimmiy, was born to the Rodriguezes in Trenton.

3. In 1978, INS commenced deportation proceedings against Mr. and Mrs. Rodriguez. The Rodriguezes conceded deportability, but applied for a suspension of deportation. This application was denied in 1981. The Mr. and Mrs. Rodriguez filed a petition in this court for review of INS's refusal to suspend their deportation. We denied this petition. No. 82-3130 (3d Cir., June 8, 1983). In August 1983, Mr. and Mrs. Rodriguez filed with the Board the motion to reopen that gives rise to this appeal. The motion alleged that "new evidence" would show that the deportation would result in "extreme hardship" for the Rodriguezes, who had recently purchased a house in Trenton, and their son Jimmiy. Mr. and Mrs. Rodriguez also requested that the Board stay their deportation pending resolution of their motion to reopen. The Board denied the request for a stay, and Mr. and Mrs. Rodriguez filed their second petition for review in this court. We dismissed that petition for lack of jurisdiction. No. 83-3416 (3d Cir. June 25, 1984). On March 27, 1984 the Board denied the Rodriguezes' motion to reopen their deportation proceedings.

4. A motion by an alien to reopen his deportation proceedings will not be granted unless "a prima facie case of eligibility for the relief sought" has been established. INS v. Jong Ha Wang, 450 U.S. 139, 141 (1981) (per curiam). Here, Mr. and Mrs. Rodriguez sought to reopen their deportation proceedings in order to present new evidence of extreme hardship in support of an application to suspend their deportation. The Board denied the motion because it found that the evidence offered by the Rodriguezes was insufficient to establish a prima facie showing of "extreme hardship," which is a statutory prerequisite for suspension of deportation proceedings. See 8 U.S.C. § 1254(a)(1) (1982).

5. INS has broad discretion in determining what constitutes "extreme hardship," and courts have upheld a narrow construction of the term since the statute itself "indicates the exceptional nature of the suspension remedy." Jong Ha Wang, 450 U.S. at 145. See Holley v. INS, 727 F.2d 189, 190 (1st Cir. 1984). Mr. and Mrs. Rodriguez contend, nevertheless, that the Board abused its discretion in holding that their evidence could not establish a prima facie case of extreme hardship. They argue that they will suffer hardship if they are forced to Costa Rica because they will have to sell their house in Trenton, Mr. Rodriguez will forfeit his job, and therefore his medical insurance, that Mrs. Rodriguez and Jimmiy have become accustomed to the relatively superior medical care available in the United States, and that fewer employment opportunities will be available to Mr. Rodriguez in Costa Rica than here.

6. INS correctly characterizes the Rodriguezes' contentions as an argument that Costa Rica is a less developed nation than the United States, and that deportation would therefore result in economic hardship for them. The federal courts have repeatedly agreed with INS that a decline in an alien's standard of living that will result from his deportation to a less well-developed country does not constitute extreme hardship. See, e.g., Jong Ha Wang, 450 U.S. at 143; Holley 727 F.2d at 190; De Reynoso v. INS, 627 F.2d 958, 959 (9th Cir. 1980); Yeung Ying Chung v. INS, 422 F.2d 43, 46 (3d Cir. 1970) (per curiam). Thus the Board did not abuse its discretion in finding the Rodriguezes' evidence on the economic deprivations that might result from their deportation insufficient to establish a prima facie case of extreme hardship.

7. Mr. and Mrs. Rodriguez also argue that their deportation would result in extreme hardship to their citizen son Jimmiy, who has suffered from a foot infection in the past and who has been held back a grade in school. They argue that the medical and educational care Jimmiy would receive in Costa Rica would be inferior to that provided to him in this country. We cannot hold that the Board abused its discretion in rejecting this argument. It is well established that such cultural deprivations, even to a citizen child of an alien, does not constitute extreme hardship. See, e.g., Jong Ha Wang, 450 U.S. at 143; Holley at 190. Mr. and Mrs. Rodriguez also assert that their deportation would violate Jimmiy's constitutional rights. Again, we must reject this claim. Deportable aliens may not circumvent the immigration laws of this country by riding on the coat-tails of their citizen children. See, e.g., Acosta v. Gaffney, 558 F.2d 1153, 1158 (3d Cir. 1977); Perdido v. INS, 420 F.2d 1179, 1181 (5th Cir. 1969).

8. We note as well that the Board correctly denied the Rodriguezes' motion to reopen with regard to the emotional difficulties of Jimmiy and the financial hardship stemming from the Rodriguezes' purchase of a two-family house in May 1980 on the ground that this evidence was available at the time of the Rodriguezes' first motion to reopen in 1982. Title 8 C.F.R. § 3.2 provides in relevant part that "Motions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered . . . was not available and could not have been discovered or presented at the former hearing . . . ." In the instant case, the Board properly recognized that "the child's possible emotional difficulties and the 1980 home purchase pertain to matters which pre-date its earlier two decisions of 12/81 and 8/82."

9. Finally, Mr. and Mrs. Rodriguez argue that the Board's order violated the constitutional principle of separation of powers, and principles of international law enunciated by the United Nations. We find these arguments to be utterly frivolous.

10. We will therefore deny the petition for review.

19850322

© 1998 VersusLaw Inc.



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