* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-60141

 

CARLOS BETANCOURT,

Petitioner,

versus

IMMIGRATION AND NATURALIZATION

SERVICE,

Respondent.

 

Petition for Review of an Order of the

Immigration and Naturalization Service

(A19 864 960)

 

January 16, 1996

Before GARWOOD, WIENER and PARKER, Circuit Judges.*

PER CURIAM:

Petitioner seeks review of a deportation order entered by the

Board of Immigration Appeals. 

Facts and Proceedings Below

Petitioner Carlos Betancourt-Olivares (Betancourt-Olivares),

a native and citizen of Mexico, entered the United States illegally

in 1967 at the age of twenty-one. He was first deported in
2

November of 1971 and was again deported in February of 1972. He

returned to the United States illegally shortly after his second

deportation and has lived continuously in this country since that

time.

In an Order to Show Cause dated July 8, 1991, the Immigration

and Naturalization Service (INS) alleged that Betancourt-Olivares

was in violation of 8 U.S.C. Sections 1251(a)(1)(A) & (B) because

he had entered the United States without inspection in 1972 and

because he was excludable at the time of his entry due to his prior

deportations. Betancourt-Olivares conceded deportability, but

applied for suspension of deportation and voluntary departure. The

Immigration Court denied his request for suspension of deportation

because he failed to prove that his deportation would cause extreme

hardship to himself, his wife, or his ten year-old daughter. His

request for voluntary departure was granted. Betancourt-Olivares

appealed the denial of his request for suspension of deportation to

the Board of Immigration Appeals (BIA). The BIA affirmed.

Betancourt-Olivares filed a timely petition for review with this

Court. 

Discussion

To be eligible for suspension of deportation pursuant to 8

U.S.C. Section 1254(a)(1), an alien must have (1) been physically

present in the United States for a continuous period of at least

seven years immediately preceding the application; (2) good moral

character; and (3) shown that the deportation would result in

“extreme hardship” to himself or to a citizen or lawful permanent
1 “Although a court has virtually no substantive review of the

BIA’s ‘extreme hardship’ finding, we may still scrutinize the BIA’s

decision for procedural regularity.” Hernandez-Cordero v. INS, 819

F.2d at 563. Betancourt-Olivares does not assert that the BIA

failed to satisfy its procedural responsibilities, thus this Court

does not address that matter. 

3

resident spouse, parent, or child. 8 U.S.C. § 1254(a)(1);

Hernandez-Cordero v. United States, 819 F.2d 558, 560 (5th Cir.

1987)(en banc). The burden is on the alien to demonstrate

eligibility for a suspension of deportation, and even if the

eligibility requirements are met, the Attorney General retains the

discretion to refuse to suspend deportation. Hernandez-Cordero v.

United States, 819 F.2d at 560. This Court has likened the

Attorney General’s discretion to suspend deportation to that

exercised in dispensing presidential pardons. Id. at 561.

“Judicial review of such a highly discretionary decision is

strictly limited. . . .” Id. 

The Board of Immigration Appeals (BIA) exercises discretion as

the Attorney General’s delegate and is empowered to decide what

constitutes extreme hardship in each case. Id. The BIA may

narrowly define extreme hardship, and such a narrow interpretation

is consistent with the “exceptional nature of the suspension

remedy.” INS v. Jong Ha Wang, 101 S.Ct. 1027, 1031 (1981).

Accordingly, the BIA’s substantive1 finding regarding extreme

hardship is reviewed under a strict standard for abuse of

discretion. Hernandez-Cordero v. INS, 819 F.2d at 561-63. We may

find that the BIA abused its discretion

“only in a case where the hardship is uniquely extreme,

at or closely approaching the outer limits of the most
2 Betancourt-Olivares’s wife and minor daughter were permanent

legal residents at the time of the BIA decision; his seventeen

year-old son had applied for resident status but was in the United

States illegally. 

3 Betancourt-Olivares does not limit his argument to the

hardships imposed on his wife and daughter. He also claims that

his deportation would cause extreme hardship to his seventeen yearold resident son. The Immigration Court properly refused to

consider any hardship to the son, however, because he was present

in the United States illegally at the time of the hearing. See 8

U.S.C. § 1254(a)(1).

4

severe hardship the alien could suffer and so severe that

any reasonable person would necessarily conclude that the

hardship is extreme.” Id. at 563.

Betancourt-Olivares has lived in the United States for most of

his adult life, and his wife and two of his children are United

States residents.2 He argues that he would suffer extreme hardship

if he is deported because: it will be difficult to find employment

in Mexico given his age and physical limitations; the adverse

economic conditions in Mexico will make it difficult to support his

family; he would not receive the medical care he requires; and his

close-knit family would be forced to separate when his wife and

children remained in the United States due to their inability to

face the hardships in Mexico. 

Betancourt-Olivares also argues that his wife and daughter3

would face extreme hardship whether they return to Mexico with him

or remain in the United States. If his wife and daughter remain in

the United States, family separation would be an emotional and

financial strain on them. Alternatively, if his wife and daughter

return with Betancourt-Olivares to Mexico, they would face even

more difficult hardships. Betancourt-Olivares’s wife would not be
4 In addition, there are factors which mitigate the abovementioned hardships. Betancourt-Olivares’s mother, two married

children, his sister-in-law, and his father-in-law all live in

Mexico. He owns property in Mexico, and his lawfully resident

daughter is bilingual. The Immigration Court also found that he is

in relatively good health.

5

able to obtain employment, and his daughter would be denied

educational opportunities. Although all of the purported hardships

are very real problems likely to befall Betancourt-Olivares and his

family if he is deported, they are exactly the types of hardships

many aliens face on returning to their native countries on

deportation. Mere economic and social hardship which most aliens

would experience upon return to their native country is

insufficient to constitute the “uniquely extreme” hardship this

Court requires to overturn a BIA decision.4 Hernandez-Cordero v.

United States, 819 F.2d at 563; Vargas v. INS, 826 F.2d 1394, 1397

(1987). 

On the record before us, the BIA did not abuse its discretion

in determining that the deportation would not result in extreme

hardship to Betancourt-Olivares or his lawfully resident family.

Accordingly, the BIA did not err in denying Betancourt-Olivares’s

application to suspend deportation.

Conclusion

For the foregoing reasons, the order of the BIA is

AFFIRMED.