ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS DATED NOVEMBER 14, 1978
Before Adams, Rosenn and Higginbotham, Circuit Judges.
Section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254, authorizes the Attorney General of the United States, in his discretion, to suspend the deportation of an alien and to adjust the alien's status to that of one legally admitted for permanent residence. In order to qualify for the special and discretionary relief provided for in § 244(a)(1), a deportable alien must meet three requirements. First, the alien must have been physically present in the United States for a continuous period of not less than seven years. Second, the alien must prove that he or she is a person of good moral character. Third, the alien must be a person whose deportation would, in the opinion of the Attorney General, result in "extreme hardship" to the deportable alien, or to the citizen or permanent resident spouse, parent or child of the deportable alien.*fn1
The present appeal concerns the alien So Chun Chung who has been ordered deported to Canada. Mrs. Chung is a native of Hong Kong, and a British subject. On September 27, 1965, she went through a marriage ceremony with Chi Yin Chung in Hong Kong and within a year they had a son, Paul. At the time of the ceremony, Mr. Chung was a permanent resident of the United States, and is now an American citizen. In 1968, Mrs. Chung entered Canada as a visitor and, in 1969, gave birth to her second son, Stanley. Subsequently, she received Canadian "landed immigrant" status, as a result of a petition filed on her behalf by a sister in Canada. Shortly thereafter, she entered the United States as a visitor entitled to stay for six months. She never left, however, and has now been in the country almost ten years. Mrs. Chung has also had a third son, Donald, who was born in Philadelphia and is thus an American citizen. Her three children are now thirteen, ten and nine years old.
Mrs. Chung apparently believed she was legally in the United States because of her husband's status as a permanent resident. In fact, unbeknownst to her, her marriage to Mr. Chung was invalid because of his prior unterminated marriage.*fn2 Mr. Chung has since sought to obtain a divorce in Florida, but had not been successful in doing so as of the time this appeal was argued.*fn3 Inasmuch as Mrs. Chung is not legally married to Mr. Chung, she is in this country illegally and is thus deportable. She concedes this, as she must, but has requested a suspension of deportation under § 244(a)(1).
Her eligibility for such a suspension turns entirely on the existence of an "extreme hardship" either as to her, or as to her citizen son, Donald.*fn4 Her good moral character and residency in the United States, the other two requirements for eligibility under § 244(a)(1), have not been questioned. And, the case for extreme hardship is not without force:
Mrs. Chung has been in the country for almost ten years. She has settled in Bucks County, Pennsylvania, where she is a waitress and a taxpayer, and where her children attend school and have many friends. Of course, were the family forced to leave the country, the children's social and educational life would be seriously disrupted.
In addition, the family's financial position has been precarious, in large part because Mr. Chung's interests, both as the owner of one Chinese restaurant and as a partner in another, were eroded by his addiction to alcohol. For a brief period the children were on public assistance. Mrs. Chung is now gainfully employed as a waitress. There is no evidence in the record that there is a job available for her in Canada or that Canada will accept Mrs. Chung and her children. In the latter event, Mrs. Chung and the children may be forced to go to Hong Kong.
Furthermore, Mr. Chung, who is ill, and now living apart from the family, nonetheless occupies an apartment nearby in order to see them regularly. Although Mrs. Chung has family in Canada her parents, brothers and sisters live there she does not communicate with them and is more attached to her friends and associates in the Bucks County community. The children have spent virtually their entire lives in the United States and there is no doubt but that the youngest son Donald, a citizen of the United States, could not remain in the country were his mother deported.
Finally, the pendency of Mr. Chung's divorce proceeding makes it possible that the period of deportation would be of only brief duration, with the family undergoing considerable social and emotional disruption only to be eligible to return to the United States within a relatively short time.
Although the family's situation was admittedly unfortunate, the immigration judge declined to find a sufficiently "extreme" hardship, and his determination was upheld by the Board of Immigration Appeals, with two members dissenting. We recognize that the power to suspend a deportation is discretionary in nature, and that the conclusion reached here was not necessarily arbitrary or irrational. But even though the Board had discretion to reject Mrs. Chung's § 244(a)(1) petition, we are troubled by the possibility that the receipt of welfare payments for her children may have played an improper role in their evaluation of her case. The matter was brought out at the hearing (A-45), specifically noted in the opinion of the immigration judge (A-28), and adverted to in both the majority and dissenting opinions of the Board (A-3, A-6, 7).
When reviewing a § 244 petition the Immigration and Naturalization Service may consider several factors in adjudging the hardship claimed by a petitioner. The financial position of a family including the sources of its income is obviously relevant in this regard. It is important, however, only insofar as it bears on the hardship that deportation would work on either the alien or the family. If, on the other hand, the alien's former dependence on public assistance is relied upon in denying a § 244 petition on the theory that those who have received public assistance are in some way less desirable than other aliens, we believe it is improper. The discretion given the Service under § 244 is broad, but it is a discretion to determine what does or does not constitute an extreme hardship to the applicant.*fn5 A consideration of the state's interest in reducing the welfare rolls a justifiable concern is simply not relevant to the existence of an extreme hardship.*fn6
It is not at all clear that, in the present case, the Board's consideration of Mrs. Chung's receipt of public assistance was improper. Although the matter was considered by the majority, its role in their decision is not explicitly set out. The dissenting Board members, at least, were apparently of the view that Mrs. Chung's status as a public charge had influenced the majority to some extent because they emphasized that she had rejected public assistance since 1976 and that the funds she had received were not lost to the county because there was a lien on her house in the amount of the public funds expended. This latter fact was referred to in both briefs to this Court, with the parties noting that Mrs. Chung has now sold her house and the Bucks County Department of Public Assistance has recouped all the funds the Chung family had previously received. The stress ...