Sonia Lezcano-Chavarria v. Immigration and Naturalization Service

January 14, 1993, ** Submitted, San Francisco, California ** The panel finds this case appropriate for submission
without argument pursuant to Fed. R. App. P. 34(a) and Ninth
Circuit Rule 34-4.
February 19, 1993, Filed

Subsequent History: Reported as Table Case at 988 F.2d 120.

Prior History:

Petition to Review a Decision of the Immigration and Naturalization Service. INS No. A24-739-689


The petition for review is GRANTED; the order for deportation is VACATED; cause REMANDED.


Before: SCHROEDER AND BRUNETTI, Circuit Judges, and KING, *** District Judge. *** Honorable Samuel P. King, Senior U.S. District Judge for the District of Hawaii, sitting by designation.


MEMORANDUM Petitioner Sonia Lezcano-Chavarria seeks review of the Board of Immigration Appeals' ("BIA") dismissal of her application for asylum. The BIA took administrative notice of the change of government in Nicaragua and concluded that petitioner therefore had no well-founded fear of persecution from the Sandinistas. We recently held that the BIA may not take administrative notice on this issue without giving petitioner adequate warning and an opportunity to be heard. Castillo-Villagra v. I.N.S., 972 F.2d 1017 (9th Cir. 1992). We must reach the same result here. We also reverse and remand the BIA's denial of petitioner's claim of past persecution. The BIA's decision in this regard runs afoul of this circuit's prohibition of "boilerplate opinions." Castillo v. I.N.S., 951 F.2d 1117 (9th Cir. 1991). In Castillo we held that the BIA's opinion "must state with sufficient particularity and clarity the reasons for denial of asylum." Id. at 1121. A review of the record in this case (and others that accompany it) demonstrates that the BIA failed to abide by Castillo's mandate. However, we affirm the Board's denial of petitioner's motion to reopen. Petitioner entered the United States on July 30, 1982. She was placed in deportation proceedings on August 2, 1982. She sought political asylum under § 208(a) of the Immigration Act, 8 U.S.C. § 1158(a), withholding of deportation under § 243(h) of the Act, 8 U.S.C. § 1253(h), and in the alternative voluntary departure under § 244(e) of the Act, 8 U.S.C. § 1254(e). The Immigration Judge denied the application for asylum and withholding of deportation on November 16, 1988. The BIA affirmed the decision of the IJ on October 1, 1990. Petitioner moved to reopen the deportation proceedings on October 25, 1990. The BIA denied the motion to reopen on January 29, 1991. "Motions to reopen shall state the new facts to be proved at the reopened hearing and shall be supported by affidavits or other evidentiary material." 8 C.F.R. § 3.8. A petitioner in a motion to reopen must also establish prima facie eligibility for the relief sought. Platero-Reymundo v. I.N.S., 807 F.2d 865, 867 (9th Cir. 1987). In this case, petitioner must allege and support by affidavit or other evidentiary material that 1) she has been physically present in the United States for at least seven years; 2) she was of good moral character during those seven years and 3) the deportation would result in extreme hardship to her or to her spouse, parent or child who is a lawful permanent resident. 8 U.S.C. § 1254(a)(1). Petitioner's new fact is that she has now resided in the United States for over seven years. She also alleges extreme emotional and psychological hardship in the separation from her family, as well as difficulty in finding work in Nicaragua. Her supporting evidence in the motion to reopen consists of letters from her employers that she is in fact employed, tax returns, and references to her permanent resident children. The Supreme Court has recognized that the Board has broad discretion in determining whether to grant a motion to reopen. I.N.S. v. Abudu, 485 U.S. 94, 104-10 (1988); I.N.S. v. Phinpathya, 464 U.S. 183, 188 n.6 (1984). The BIA did not abuse its discretion in denying petitioner's motion to reopen the deportation proceedings. The BIA properly found that petitioner's new fact of seven years residence in the United States, and her claims of extreme emotional and economic hardship, were insufficient evidence to grant a suspension of deportation. Vasquez v. I.N.S., 767 F.2d 598, 601-2 (9th Cir. 1985). Financial hardship and separation from family are insufficient in themselves to constitute a claim of extreme hardship. See Hassan v. I.N.S., 927 F.2d 465 (9th Cir. 1991). The petition for review is GRANTED; the order for deportation is VACATED; cause REMANDED.
Submitted: 14 January, 1993; Filed: 19 February, 1993 The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

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