PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before Aldisert and Sloviter, Circuit Judges, and Hannum, District Judge.*fn*
This case is before us on rehearing before the original panel following our exercise of our discretionary authority to recall the certified judgment issued in lieu of mandate, an action which we take only in "unusual circumstances." American Iron and Steel Institute v. EPA, 560 F.2d 589 (3d Cir. 1977), cert. denied, 435 U.S. 914, 98 S. Ct. 1467, 55 L. Ed. 2d 505 (1978). We followed that practice in this case so that we could consider the contention of respondent Immigration and Naturalization Service that our original decision is contrary to the subsequent decision of the Supreme Court in INS v. Wang, 450 U.S. 139, 101 S. Ct. 1027, 67 L. Ed. 2d 123 (1981). On consideration of the parties' additional briefs and oral arguments, we believe that the primary basis for our original decision, that the Board abused its discretion in refusing to reopen the record to consider psychiatric data not available during previous hearings, is not foreclosed or undermined by the Wang decision, and we once again conclude a remand to the Board of Immigration Appeals is appropriate.
Zenaida Ravancho and her husband, Alejandro Ravancho, are both citizens of the Philippines who entered the United States on November 7, 1968 and December 19, 1968 respectively. On December 10, 1969, their daughter Patricia was born in the United States. Zenaida and Alejandro Ravancho were authorized to remain in the United States until February 7, 1974, but remained beyond their authorized stay and were charged with being deportable under 8 U.S.C. § 1251(a)(2) (1976). At the hearings before the immigration judge on February 1, 1978 and on March 15, 1978, the Ravanchos conceded deportability and sought to establish that deportation should be suspended on the ground of "extreme hardship" as provided for in 8 U.S.C. § 1254(a)(1) (1976).*fn1
The Ravanchos proved, inter alia, that they are both presently employed; that they have had stable employment records, Mr. Ravancho having been employed as an engineering aide by the Wallace & Tiernan Company of Belleville, New Jersey, since December 1969, and Mrs. Ravancho having been employed by the New Jersey Bell Telephone Company as a keypunch operator since 1970; and that they have purchased a house in New Jersey. They sought to show economic hardship to them which would ensue if they were deported. They also sought to establish hardship to their child (then 8 years old) by their testimony at the hearing on March 15, 1978 that she knows no other life than that in the United States, is unable to speak the Philippine language, was a straight A student in school, and that her "life would be dramatically upset by being uprooted from her home, friends, and the only life she knows."
On October 24, 1978, the immigration judge denied the Ravanchos' applications for suspension of deportation. The judge concluded that the Ravanchos met the physical presence and good moral character requirements for relief under that statute, but had failed to satisfy their statutory burden of showing that extreme hardship would result. He stated:
A careful review of all the facts as presented including the difficulties the respondents would have in attempting to obtain employment in their native Philippines, their family situation, the loss of the income that they have now in the United States and the possible transfer of their United States citizen child to relocate in the Philippines does not appear to satisfy the burden placed upon them to show that they would suffer extreme hardship under this Section of the law. Such economic disadvantage does not constitute the required statutory hardship. (emphasis added).
The Ravanchos' appeal to the Board of Immigration Appeals was dismissed on June 14, 1979. The Board held that the immigration judge properly found that the economic detriment the Ravanchos might suffer if deported to the Philippines would not amount to extreme hardship within the purview of the statute. The Board further stated in affirming the decision of the immigration judge: "We also find that their United States citizen child, born less than one year after her mother's arrival in this country as a nonimmigrant visitor, would not suffer extreme hardship."*fn2 The Ravanchos filed a Motion to Stay Deportation and to Reopen Proceedings on July 31, 1979.*fn3 They attached to that motion a psychiatric evaluation of Patricia dated July 17, 1979, which had been made to evaluate the effect on Patricia's mental, physical and emotional stability of a return to the Philippines. They also filed an affidavit where they averred, as they had previously testified, that Mrs. Ravancho had a brother and sister who are both lawful permanent residents of the United States and that Mr. Ravancho has a sister who is also a lawful permanent resident of the United States.
The Board appeared to treat the petition as one for reconsideration rather than reopening. Although it did not at any time state that the evidence presented failed to meet the requirements of the regulation which limits reopening to cases where the evidence sought to be offered is material and was unavailable at the time of the former hearing, 8 C.F.R. § 3.2, it failed to rule directly on the request for reopening. Instead it denied reconsideration on the ground that the psychiatrist's report did not demonstrate the "extreme hardship" required by the statute. It was that denial which was the subject of the petition for review before this court.*fn4
In our original decision, we held that a remand to the Board was appropriate because the Board
appears to have considered the proffered psychiatrist's report in isolation, only in terms of whether, on its own, that report sufficed to demonstrate extreme hardship within the statutory terms. This is contrary to the requirement that the decision whether to suspend deportation must be made on a consideration of all relevant factors. The psychiatrist's report may well have been the increment which would have tipped the balance toward suspension. There is no indication in the Board's opinion that it evaluated the proffered evidence on this basis.
We also stated that the Board appeared to give too little weight to the psychological burden on Patricia, a factor that the immigration judge had erroneously subsumed in his discussion of "economic disadvantage". We concluded our observations with the statements:
We recognize that the determination of whether petitioners have shown extreme hardship to warrant suspension of deportation is entrusted to the discretion of the immigration judge and Board, in the first instance. However, we hold that petitioners have produced evidence which, on its face, is relevant to that determination and which must be considered by the agency in the exercise of its discretion. (footnote omitted).
The thrust of the respondent's position on rehearing is that "(t)he decision in this case is incorrect because this court substituted its own judgment for that of the Board of Immigration Appeals in determining what will constitute extreme hardship warranting suspension of deportation," Respondent's Brief on Rehearing, p. 7, and thus is contrary to I.N.S. v. Wang, 450 U.S. 139, 101 S. Ct. 1027, 67 L. Ed. 2d 123 (1981), decided after this court's original decision. Therefore our inquiry must focus upon the ...