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Dill v. Immigration and Naturalization Service and Executive Office of Immigration Review

September 4, 1985

PAULA MYRTLE MARIE DILL, PETITIONER
v.
IMMIGRATION AND NATURALIZATION SERVICE AND EXECUTIVE OFFICE OF IMMIGRATION REVIEW, BOARD OF IMMIGRATION APPEALS, RESPONDENTS



On Petition for Review of an Order of the Board of Immigration Appeals Dated May 7, 1984 (File No. A21 164 811)

Author: Pollak

Before: ADAMS and WEIS, Circuit Judges, and POLLAK, District Judge*fn*

Opinion OF THE COURT

POLLAK, District Judge.

The Immigration and Nationality Act vests in the Attorney General broad discretion to suspend deportation of an alien who has been ordered deported, provided the alien establishes (1) good moral character, (2) seven years' continuous physical presence in the United States, and (3) "extreme hardship" to the alien, or, in the alternative, to the alien's "spouse, parent, or child," if that close family member is a citizen or lawful permanent resident of the United States. 8 U.S.C. § 1254(a)(1). Exercise of this discretionary authority has been delegated by the Attorney General to certain officials of the Immigration and Naturalization Service -- namely, immigration judges and the Board of Immigration Appeals. An alien whose motion for suspension of deportation is turned down by the Board of Immigration Appeals may seek review in the appropriate court of appeals; but, as the Supreme Court has had recent occasions to make plain, Board decisions denying suspension of deportation are not to be lightly overturned. See INS v. Rios-Pineda, 471 U.S. 444, 85 L. Ed. 2d 452, 105 S. Ct. 2098, 53 U.S.L.W. 4537 (1985); INS. v. Phinpathya, 464 U.S. 183, 78 L. Ed. 2d 401, 104 S. Ct. 584 (1984).

Petitioner Paul Dill, a twenty-year-old native of Bermuda, entered the United States on a student visa in 1975. In the same year, petitioner's uncle and aunt, Ellison and Myrtle Dill, who have raised petitioner since she was an infant, also came to the United States; two years later, Reverend and Mrs. Dill became permanent residents. In May of 1976, petitioner, having overstayed her student visa, was found deportable. Permitted by the INS to depart voluntarily, petitioner left the United States in July of 1976 and, in August, was readmitted to the United States under a new student visa authorizing her to remain for two years. Petitioner has resided in the United States since August of 1976. In January 1982, more than three years after the lapse of the visa issued in 1976, Ms. Dill was again found deportable, and the INS again permitted her to depart voluntarily. She neither contested this finding nor sought suspension of deportation; rather, she relied on the efforts of Reverend and Mrs. Dill to obtain her admission as the "child" of lawful permanent resident aliens. See 8 U.S.C. § 1511(b). Those efforts were unsuccessful because Ms. Dill, never having been formally adopted by her uncle and aunt, did not qualify as their "child" within the meaning of the statute. Id. Ms. Dill did not depart within the time allotted her by the immigration judge, and the INS directed her to report for deportation on September 14, 1982.

The day before she was to report, she moved to reopen her deportation proceeding, see 8 C.F.R. § 3.2, and sought suspension of deportation. Her motion to reopen was denied by an immigration judge on the ground that seven years had not elapsed since her August 1976 return to the United States. She appealed this decision to the Board of Immigration Appeals, and requested a stay of deportation pending the resolution of her appeal. The request for a stay was denied and petitioner was again ordered to report for deportation on November 3, 1982. Ms. Dill petitioned this Court to review the Board's denial of her request for a stay, thereby automatically staying deportation pending this Court's ruling. See 8 U.S.C. § 1105(a)(3). Before any decision issued, the Board affirmed the immigration judge's denial of petitiner's [sic] motion to reopen. Petitioner then sought review in this Court of the Board's new order and moved to consolidate her two appeals.

In September of 1983, this Court directed that the matter be remanded to the Board in view of the fact that seven years had by then elapsed since petitioner's 1976 reentry. This Court's opinion on remand directed the Board to address the "hardship" issue -- an issue which (1) had been decided adversely to Ms. Dill by the immigration judge (largely on the ground that the elder Dills were not, within the meaning of the statute, petitioner's "parent[s]," and hence stood outside the circle of close relatives whose "hardship" had statutory significance), and (2) had been pretermitted by the Board. In particular, this Court asked the Board to examine the "hardship" issue "in light of, inter alia, Antoine-Dorcelli v. INS, 703 F.2d 19 (1st Cir. 1983) and Tovar v. INS, 612 F.2d 794 (3d Cir. 1980)": in Antoine-Dorcelli the alien had lived with an American family, as a member of the household, for thirty years; in Tovar the alien was the grandmother and "surrogate mother" of a five-year old American child. Cf. Zamora-Garcia v. INS, 737 F.2d 488, 493-94 (5th Cir. 1984).

On remand, the Board again declined to suspend Ms. Dill's deportation. The Board's ruling was predicated on two grounds:

First, the Board determined that "by ignoring voluntary departure and by filing frivolous motions and petitions, the [petitioner] has extended her stay in the United States until she has achieved 7 years' physical presence. We consider such an abuse of the system of relief to be a very adverse discretionary factor. The [petitioner] does not have sufficiently weighty favorable equities to overcome this adverse factor.... Therefore, we would deny the motion to reopen as a matter of discretion."

Second, the Board considered the "hardship" issue to which this Court had directd [sic] its attention. Distinguishing Ms. Dill's situation from that of the minor child whose grandmother was subject to deportation in Tovar, supra, the Board found that petitioner "is an adult who can establish her own life and need not depend primarily on her parents for emotional support in the same way as a young child. She has some education, and she has relatives in Bermuda. Like other adult children who live away from home, she should be able to visit her adoptive parents without difficulty.... The emotional difficulty of this separation to the [petitioner] or to [Reverend and Mrs. Dill] could not be characterized as extreme, even if the [petitioner] were the natural child of her adoptive parents."

From the Board's reinstatement of its prior adverse ruling, Ms. Dill once again appeals to this Court. Ms. Dill contends that the Board was in error in both of the grounds relied on to deny suspension of deportation. We address those two contentions in turn:

I.

The Baord first determined that Ms. Dill has managed to achieve seven years of continuous presence in the United States "by ignoring voluntary departure and filing frivolous motions and petitions." This, the Board reasoned, constituted "an abuse of the system of relief" from deportation that outweighed Ms. Dill's "favorable equities" ...


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