UNITED STATES COURT OF APPEALS Filed 1/6/97

Tenth Circuit

Byron White United States Courthouse

1823 Stout Street

Denver, Colorado 80294

(303) 844-3157

Patrick J. Fisher, Jr. Elisabeth A.

Shumaker

Clerk Chief Deputy Clerk

January 6, 1997

TO: All recipients of the captioned opinion

RE: No. 95-9551, Luna-Rodriguez v. Immigration & Naturalization Service

 January 3, 1997

Please be advised of the following correction to the captioned decision:

The last line of the opinion contains the phrase “if AFFIRMED.” It should read

“is AFFIRMED.” 

Please make the appropriate correction.

Very truly yours,

Patrick Fisher, Clerk

Susan Tidwell

Deputy Clerk
* Honorable William F. Downes, District Judge, United States District

Court for the District of Wyoming, sitting by designation. 

PUBLISH

UNITED STATES COURT OF APPEALS

Filed 1/3/97

TENTH CIRCUIT

RAUL LUNA-RODRIGUEZ,

SOSTENES LUNA-SALGADO,

Petitioners,

v.

IMMIGRATION &

NATURALIZATION SERVICE,

Respondent.

No. 95-9551

ON PETITIONS FOR REVIEW FROM THE

BOARD OF IMMIGRATION APPEALS

(BIA Nos. A73 372 973 and A73 372 974)

Submitted on the briefs:

Anthony J. Garcia, for Petitioners.

Joan E. Smiley, Senior Litigation Counsel, Madeline Henley, Office of

Immigration Litigation, Civil Division, Department of Justice, Washington, D.C.,

for Respondent. 

Before EBEL and HENRY, Circuit Judges, and DOWNES,* District Judge.
2 After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The

case is therefore ordered submitted without oral argument.

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EBEL, Circuit Judge.

Petitioners Raul Luna-Rodriguez and Sostenes Luna-Salgado, husband and

wife, are natives and citizens of Mexico who entered the United States without

inspection in 1986. See 8 U.S.C. § 1251(a)(1)(B). They petition for review of a

final order of deportation by the Board of Immigration Appeals (Board). We have

jurisdiction under 8 U.S.C. § 1105a(a). We affirm the Board’s decision, and deny

the petition for review.2

The Lunas applied for and were denied relief under § 244 of the

Immigration and Nationality Act, which gives the Attorney General discretion to

suspend deportation and admit for permanent residence an alien who: (1) has

been physically present in the United States for at least seven years; (2) is a

person of good moral character; and (3) is “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 or an alien

lawfully admitted for permanent residence.” 8 U.S.C. § 1254(a)(1). Even if these

statutory prerequisites are satisfied, the Attorney General retains discretion to
3 At the time of the Board’s decision, the Lunas’ only child, a

daughter, was married and living here, but she was neither a citizen nor a lawful

permanent resident. Their permanent resident son-in-law and United States

citizen granddaughter do not come within the language of § 1254(a)(1), which is

construed strictly. INS v. Hector, 479 U.S. 85, 88-90 (1986).

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suspend, or refuse to suspend, deportation. INS v. Rios-Pineda, 471 U.S. 444,

446 (1985). The immigration judge (IJ) denied suspension of deportation in this

case because the Lunas failed to demonstrate seven years’ continuous physical

presence in the United States, or that they would suffer extreme hardship if

deported. Admin. R. at 35-36. 

On appeal, the Board affirmed the IJ’s decision, determining on its own

reasoning that the Lunas failed to show they would suffer extreme hardship if

deported. Id. at 2-4. The Board noted that, at the time of its decision, Mr. and

Mrs. Luna were 36 and 39 years old, respectively. Mr. Luna had worked for

several years as a mason, and Mrs. Luna was a child care provider. Both had

several close relatives in Mexico. They also had a few relatives residing in the

United States, but none that qualified under § 1254(a)(1).3 As a result, the Lunas

were required to demonstrate extreme hardship through themselves alone to

establish their eligibility for suspension of deportation. Mr. and Mrs. Luna both

claimed they would be unable to find work in Mexico. The Board found that the

Lunas’ “residence in this country is not so lengthy nor their family ties so

extensive that their deportation would amount to extreme hardship.” Admin. R. at
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4. The Board further found “that these middle-aged, employable respondents,

who are in good health and have no one depending upon them for support, have

not shown that the economic and emotional difficulties that they would

experience upon deportation can be characterized as extreme hardship.” Id. The

Board concluded that the Lunas were not eligible for suspension of deportation

under § 1254(a)(1) because they had failed to establish extreme hardship, and that

it was therefore unnecessary to determine whether the Lunas had shown seven

years’ continuous physical presence in the United States.

In this petition for review, the Lunas argue that: (1) the Board abused its

discretion by failing to consider all of the factors relevant to the determination of

extreme hardship; (2) the IJ abused his discretion when he found that they had

failed to show seven years’ continuous physical presence in the United States; and

(3) the IJ distorted or disregarded important aspects of their claim, resulting in an

arbitrary denial of relief. Because the Board reviewed the case de novo, we

review only the Board’s decision and not that of the IJ. Rubio-Rubio v. INS, 23

F.3d 273, 274 n.1 (10th Cir. 1994); cf. Panrit v. INS, 19 F.3d 544, 546 (10th Cir.

1994) (holding that when Board relies on express reasoning of IJ, court of appeals

reviews only that reasoning). As a result, we do not reach the Lunas’ second or

third issues.
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We review the Board’s determination that the Lunas failed to establish 

extreme hardship only for abuse of discretion. Turri v. INS, 997 F.2d 1306, 1308

(10th Cir. 1993). The words “extreme hardship . . . are not self-explanatory, and

reasonable men could easily differ as to their construction. But the Act commits

their definition in the first instance to the Attorney General and [her] delegates.” 

INS v. Wang, 450 U.S. 139, 144 (1981) (per curiam). Several nonexclusive

factors are relevant to the determination of extreme hardship: “the alien’s age;

the length of his residence in the United States; his family ties in the United

States and abroad; his health; the economic and political conditions in the country

to which he may be returned; his financial status, business, or occupation; the

possibility of other means of adjustment of status; his immigration history; and

his position in the community.” Matter of Ige, Int. Dec. 3230, 1994 WL 520996,

at 3 (BIA Sept. 16, 1994). These factors must be considered in the aggregate. Id.

“‘[W]e may . . . scrutinize the [Board’s] decision for procedural regularity,’”

Turri, 997 F.2d at 1308 (quoting Hernandez-Cordero v. United States INS, 819

F.2d 558, 563 (5th Cir. 1987)), but our substantive review of a no “extreme

hardship” determination would allow us to find an abuse of discretion only in a

case “where the hardship is uniquely extreme, at or closely approaching the outer

limits of the most severe hardship the alien could suffer and so severe that any
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reasonable person would necessarily conclude that the hardship is extreme,”

Hernandez-Cordero, 819 F.2d at 562-63. 

The Lunas do not point out what specific factor the Board supposedly

overlooked. The crux of their argument, rather, is that they will be completely

unable to find work in Mexico and that this, by itself, demonstrates extreme

hardship. We note that this allegation is not supported by any evidence. See,

e.g., Ramirez-Gonzalez v. INS, 695 F.2d 1208, 1211-12 (9th Cir. 1983) (holding

unsupported allegations insufficient to establish inability to find employment if

deported or to trigger Board’s duty to consider personal hardships resulting from

unemployment); Santana-Figueroa v. INS, 644 F.2d 1354, 1357 & n.8 (9th Cir.

1981) (holding alien seeking suspension of deportation must offer more than

“bare allegation” of extreme hardship); Pelaez v. INS, 513 F.2d 303, 304-05 &

n.1 (5th Cir. 1975) (rejecting unsupported claim that petitioner would be unable

to find suitable work if deported). Therefore, we find their argument to be

without merit.

Moreover, the inability to find work, without more, does not establish that

the Board abused its discretion in finding no “extreme hardship.” “[I]t is only

when other factors such as advanced age, severe illness, family ties, etc. combine

with economic detriment to make deportation extremely hard on the alien or the

citizen or permanent resident members of his family that Congress has authorized
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suspension of the deportation order.” Matter of Anderson, 16 I. & N. Dec. 596,

598 (BIA 1978). That is not the case here. 

A narrow interpretation of “extreme hardship” is consistent with the

structure and legislative history of the statute. See Hernandez-Patino v. INS, 831

F.2d 750, 752-53 (7th Cir. 1987); Hernandez-Cordero, 819 F.2d at 562. Although

Congress supplied the suspension remedy for aliens who enter this country

illegally, the eligibility requirements themselves, and the nearly “‘unfettered’

discretion” accorded the Attorney General to deny suspension even when they are

met, see id. (quoting Jay v. Boyd, 351 U.S. 345, 354 (1956)), indicate that

Congress intended this dispensation rarely to be bestowed. The Supreme Court

has previously upheld the Board’s narrow interpretation of “extreme hardship,”

because “a narrow interpretation is consistent with the ‘extreme hardship’

language, which itself indicates the exceptional nature of the suspension remedy.” 

Wang, 450 U.S. at 145.

The decision of the Board of Immigration Appeals is AFFIRMED, and the

petition for review is DENIED.