Interim Decision #2818 

MATTER OF KIM 

In Deportation Proceedings 

A-14516808 

A-14409745 

Decided by Board August 22, .1974 

Suspension of deportation under section 244(a)(1) of the Act based on seven years physical 

presence in the United States will not be granted on a claim of extreme hardship, where 

the only facts presented tended to show better economic and educational opportunities 

for the respondent's United States citizen children in the United States than in Korea. 

CHARGE: 

Order Act or 1952—Section 241(a)(2) [8 U.S.C. 1251(a)(2))—Nonimmigrant student, 

remained longer than permitted (both respondents). 

ON BEHALF OF RESPONDENTS: 

Leslie J. Frank and 

Bert D. Greenberg. Esquires 

California Federal Building 

Suite 1800 

5670 Wilshire Boulevard 

Los Angeles, California 90036 

ON BEHALF OF SERVICE: 

William S. Howell 

Trial A ttornay 

David L. Iffilhollan 

Appellate Trial Attorney 

In a decision dated April 27, 1973, the immigration judge found the 

respondents deportable as charged, and granted their applications for 

suspension of deportation. The Service has appealed from that decision. 

The appeal will be sustained, and the record will be remanded to the 

immigration judge. 

At the hearing, the respondents conceded deportability and applied 

for suspension of deportation under section 244(a)(1) of the Immigration 

and Nationality Act. Neither of the respondents is within any of the 

categories listed in section 244(a)(2) of the Act, each respondent is a 

person of good moral character, and each respondent has satisfied the 

seven-year physical presence requirement of section 244(a)(1). The sole 

issue on appeal is whether the respondents have established the "extreme hardship" which is a requisite for eligibility for suspension of 

deportation under section 244(a)(1). 

The respondents, husband and wife, are both natives and citizens of 

Korea. They both entered the United States as nonimmigrant students, 

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and they both remained longer than their authorized stay. The respondents were married in 1966 and are the parents of two United States 

citizen children. One child is six and one half years old and the other 

child is three years old. The respondents claim that their deportation 

would result in extreme hardship to them and to their United States 

citizen children. 

The respondents base their claim of extreme hardship to themselves 

on their alleged inability to find suitable employment if they returned to 

Korea. They also testified that if deported they would take their sons 

with them Lo Korea. They contend that this would be extreme hardship 

on the children because they would. be deprived of the educational and 

economic advantages that are available to United States citizens in this 

country. The respondents also claim that the oldest child would suffer 

hardship because he has not learned to speak Korean. 

The immigration judge stated that, he was skeptical of the respondents' claims that they would have great difficulty in securing suitable 

employment in Korea. In this respect, he noted that both respondents 

have college educations, and that therefore they would both have more 

opportunities than the average person in Korea. Moreover, the mere 

fact that an alien's economic opportunities in a foreign country may be 

somewhat less than they are in the United States is not, by itself, 

sufficient to establish the "extreme hardship", required for suspension of 

deportation under section 244(a)(1) of the Act. Matter of Kojoory, 12 I. 

& N. Dec. 215 (BIA 1967); Matter of Sangster, 11 L & N. Dec. 309 (BIA 

1965); Matter of Uy, 11 I. & N. Dec. 159 (BIA 1965). We agree with the 

immigration judge's conclusion that the respondents' deportation would 

not result in "extreme hardship" to them. 

The immigration judge went on to find, however, that the respondents' United States citizen children should be raised in the United 

States. He concluded, after considering the rights and interests of the 

citizen children, that it would be "extreme hardship" on the children to 

take them to Korea. We agree with the Service's contention that this 

conclusion is erroneous. 

"Extreme hardship" is not a term of fixed and inflexible content or 

meaning. The question of whether there is "extreme hardship" depends 

upon the facts and circumstances peculiar to each case. Matter of Sangster, supra; Matter of Eiy, supra; Matter of Hwang, 10 I. & N. Dee. 448 

(BIA 1964). In the present case, no facts have been presented to show 

that the respondents' citizen children would suffer "extreme hardship." 

The only "facts" presented in the record are several general statements 

by the respondents to the effect that their children would have better 

economic and educational opportunities in the United States than in 

Korea. 

This case does not involve the separation of a family. As the immigra89 
Interim Decision 42318 

tion judge pointed out, the children are so young that no claim can be 

made that they could not adjust to living in Korea (Tr. p. 50). Nor is 

there any evidence that the respondents could not support and educate 

the children in Korea. 

One of the respondents' children is preschool age, and the other is so 

young that the move to Korea would not be a significant disruption of his 

educational p:rogram. It is not apparent that the children will lack 

educational and economic opportunities in Korea, nor is it evident that 

the educational and economic situation in Korea would be such as to 

preclude their ever returning to the United States. Both of the respondents were able to obtain college educations in Korea, to learn English, 

and to come to the United States and adapt to life here; there is no 

reason to believe that their children will not be able to do the same. 

Under the circumstances present in this case, we find that the respondents have not shown their deportation would result in "extreme 

hardship" to their citizen children. We note that Congress has specifically precluded minor United States citizen children from conferring 

preferred immigration status upon their parents under section 201(b) of 

the Act. 

We will sustain the Service appeal and reverse the immigration 

judge's order granting suspension of deportation. The record' will be 

remanded to the immigration judge for further proceedings. 

ORDER: The Service appeal is sustained, and the order granting 

suspension of deportation is reversed. 

Further order: The record is remanded to the immigration judge for 

whatever further proceedings may be necessary and the entry of an 

appropriate order. 

Warren R. Torrington, Board Member, concurring: 

The dissenting opinion assumes certain facts which simply are not 

true. Aliens have never been "compelled, on departing from the United 

States, to leave behind their American citizen children." [Emphasis 

added.] Such children are not "banished from the country of their birth" 

when they join their deportable parents in the parents' home country. I 

find particularly uncalled for the dissenter's intimation that the majority 

decision may be "based on some notion that there is a Congressional 

policy favoring the departure of United States citizen minor children of 

deportable aliens." There has, of course, never been, and could never 

have been, such a Congressional policy which would be in clear violation 

of the Constitution of the United States. On the other hand, the courts 

have consistently held that a deportation order entered against the 

parents of United States citizen children does not deprive the children of 

any Constitutional rights. Application of Amoury, 307 F. Supp. 213 

(S.D. N.Y. 1969);Perdidov.INS, 420 F.2d 1179 (C.A. 5, 1969);Dayao v. 

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Staley, 303 F. Supp. 16 (S.D. Tex. 1969); affd 424 F.2d 1131 (C.A. 5, 

1970); and Faustino v. INS, 302 F. Supp. 212 (S.D.N.Y. 1969). This 

view was also shared by the writer of the present dissenting opinion in 

Matter of Lopez, 14 I. & N. Dec. 424 (BIA 1973), in which the Board 

stated, inter alia: 

"Two grounds for appeal are set forth in the notice of appeal. The first is that the 

respondents have a minor child born in the United States whose constitutionally 

guaranteed rights to parental care would be violated if the respondents are required to 

depart. The short answer is that whatever rights the child may have under the 

Constitution do not authorize the respondents to remain here in violation of the immigration laws. The respondents have it within their own power to avoid the alleged 

hardship that would befall the child on separation by taking the child with them when 

they depart." 

The statute (section 244(a)(1) of the Immigration and Nationality Act) 

has been on the books for many years. Congress knew what it meant. 

We have known what it meant. The novel theories advanced by the 

dissenters would now expand grants of suspension of deportation in 

previously unheard-of ways. 

Any American-born child was born in what we believe to be the 

greatest country on earth. Thus, such a child may indeed be considered 

to suffer some hardship of one kind or another the moment it leaves with 

its parents for their home country, in which, by definition, conditions 

cannot be equal to those in the United States. That kind of hardship, 

however, has never been considered by Congress, the courts, or otherwise, to be the "extreme hardship" required for eligibility for relief 

under section 244(a)(1) of the Act. 

AU but one of the cases cited in the dissenting opinion have nothing to 

do with the provisions of section 244(a)(1) of the Immigration and 

Nationality Act, the only statute here involved. Young v. INS, 459 F.2d 

104 (C.A. 9, 1972), does not support the novel notions presented in the 

dissenting opinion. 

I concur in the majority opinion. 

Maurice A. Roberts, Chairman, dissenting: 

I respectfully dissent. I would dismiss the Service appeal or, in the 

alternative, would on remand give the respondents an opportunity to 

present additional evidence on the issue of extreme hardship to their 

children. 

The respondents are the parents of two United States citizen children; born in this country and now aged respectively six and a half and 

three years old. The immigration judge found that respondents' deportation would result in extreme hardship to the children. Since the 

statutory provisions for suspension of deportation are remedial in nature, they should not be strictly and technically construed, Wadman v. 

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INS, 329 F.2d 812 (C.A. 9, 1964). I would not disturb the immigration 

judge's finding of extreme hardship. 

If the respondents were compelled, on departing from the United 

States, to leave behind their American citizen children, it is hardly 

conceivable that their forced separation would not result in extreme 

hardship to ean.h. In a suspension of deportation setting, the courts have 

noted the hardship involved in breaking up ,close family ties, Yong v. 

INS, 459 F.2e. 1004 (C.A. 9, 1972). 

The mere fact that the respondents will take their children to Korea 

with them anc that the children are young enough to adjust to living in 

Korea does not eliminate extreme hardship to the children in being thus 

banished from the country of their birth. Merely because such a child 

may not be deprived of the loving care of his parents does not mean that 

other significg.nt deprivations will not ensue. The possibilities of extreme hardship to a United States citizen child under these circumstances are numerous. Depending on the circumstances prevailing 

in the foreign ,country, the child may be deprived of the educational and 

economic opportunities, the health services and other benefits readily 

available to him in this country. He may be deprived of the great democratic freedoms which are ours. If brought up in a home, such as 

respondents', where English is not the usual language, he is likely to 

grow up without a knowledge of our language; or, if he does learn to 

speak it, is likely to do so with a foreign accent. On becoming aui juris 

and returning to this country, as is his right as a United States citizen, 

he may find Cut his absence from his homeland during his formative 

years has placed him at a great disadvantage economically, educationally, socially and health-wise. In my estimation, elements such as these 

can add up to the "extreme hardship" Congress designed section 244 to 

ameliorate. 

The majority opinion' notes (p. 4) "that Congress has specifically 

precluded minor United States citizen children from conferring preferred immigration status upon their parents under section 201(b) of the 

Act." That is undoubtedly true; but it has no relevance to this ease, 

which arises under an entirely different provision of the Act. If, by this 

reference, the majority opinion indicates that its decision is based on 

some notion that there is a Congressional policy favoring the departure 

of United States citizen minor children of deportable aliens, I must 

demur. 

Insofar as •2oncerns a Congressional policy with respect to minor 

American-horn children of deportable alien parents, I know of nothing 

which evinces a generalized Congressional desire that such children 

should leave this country. A child born in the United States of alien 

parents is as much a citizen as one horn to citizen parents and has the 

same legal right to remain here. It is true that in the provison to section 

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201(b) of the Act, Congress declined to confer immediate relative status 

on the alien parents of minor children: Without going into the legislative 

history of that provision, it seems clear that Congress did not intend to 

encourage aliens to come here illegally by giving then quota exemption 

if they managed to beget a child here before they could be deported. The 

courts have held that this discrimination with respect to the alien 

parents of minor citizen children does not impair the latter's rights 

under the Constitution. 

It by no means follows that section 201(b)'s proviso evinces a 

generalized Congressional policy that minor American-born children of 

deportable aliens should depart under all circumstances. Quite the 

contrary, other provisions of the Act set up various forms of relief from 

exclusion or deportation, most of which are discretionary- but one of 

which is mandatory, for alien parents of American children, who by 

definition must be minors.' See, e.g., sections 212(e), 241(1), and 244(a). 

Thus, in construing section 241(f) to apply in a situation where the 

citizen child was born ,here not long after the alien's arrival, the courts 

have stressed the underlying Congressional policy of uniting families, 

INS v. Errico, 385 U.S. 214 (1966); Godoy v. Rosenberg, 415 F.2d 1266 

(C.A. 9, 1969). 

Section 244(a) of the Act authorizes discretionary suspension of deportation to an alien parent who meets certain eligibility requirements 

and whose deportation would cause extreme hardship to his citizen 

child. Since the latter is by definition a minor, this provision seems 

clearly incompatible with the notion that there is a general Congressional policy that deportable alien parents of minor American-born 

children should depart and take their American-born children with 

them. 

Under section 244(a), the alien parent seeking suspension must show 

at least seven years' continuous physical presence here in addition to the 

"extreme hardship" requirement. This is a far cry from the situation 

Congress sought to guard against in enacting the proviso to section 

201(b). The Congressional policy underlying its deliberate failure to 

provide preferential treatment in the issuance of visas to alien parents 

of minor United States citizen children can have little to do with the 

type of situation presented in section 244(a) cases, which involve both 

long residence here and extreme hardship, neither of which is relevant 

under section 201(b). 

In Wadman v. INS, supra, the court enunciated an approach to 

suspension cases which should guide us here. The court stated, 329 F.2d 

at 816-817: 

Section 101(b)(1) states that the term "child" means an unmarried person under 

twenty-one years of age. 

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Interim Derision #2318 

In construing §244 we are in an area in which strict construction is peculiarly 

inappropriata. The apparent purpose of the grant of discretion to the Attorney General 

is to enable that officer to ameliorate hardship and injustice which otherwise would 

result from a strict and technical application of the law. A strict and technical construction of the language in which this grant of discretion is couched could frustrate its 

purpose. A liberal construction would not open the door to suspension of deportation in 

cases of doubtful merit. It would simply tend to increase the scope of the Attorney 

General's reiriew and thus his power to act in amelioration of hardship. 

In keeping with the foregoing rule of construction, I would not disturb 

the immigration judge's finding of extreme hardship to the children 

here. 

The majo:Ity decision reverses the immigration judge's grant of suspension of deportation and remands "for whatever further proceedings 

may be nece ssary and the entry of an appropriate order." I assume this 

contemplates that the immigration judge will now give the respondents 

an opportunity to apply for voluntary departure in lieu of deportation. 

On remand, I think the respondents should also have the oppeirtunity to 

present further evidence to prove that their deportation will result in 

extreme hardship to their.children. 

Louisa Wilson, Member, dissenting! 

I concur in the foregoing dissenting opinion. 

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