ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
Section 244 of the Immigration and Nationality Act (Act), 66 Stat. 214, as amended, 8 U. S. C. § 1254 (a)(1), provides that the Attorney General in his discretion may suspend
deportation and adjust the status of an otherwise deportable alien who (1) has been physically present in the United States for not less than seven years; (2) is a person of good moral character; and (3) is "a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence."*fn1 The Attorney General is authorized to delegate his powers under the Act, 8 U. S. C. § 1103, and his authority under § 244 has been delegated by regulation to specified authorities in the Immigration and Naturalization Service. 8 CFR § 2.1 (1979).*fn2
The § 244 issue usually arises in an alien's deportation hearing. It can arise, however, as it did in this case, on a motion to reopen after deportation has been duly ordered. The Act itself does not expressly provide for a motion to reopen, but regulations promulgated under the Act allow such
a procedure.*fn3 The regulations also provide that the motion to reopen shall "state the new fact to be proved at the reopened hearing and shall be supported by affidavits or other evidentiary material." 8 CFR § 3.8 (a) (1979). Motions to reopen are thus permitted in those cases in which the events or circumstances occurring after the order of deportation would satisfy the extreme-hardship standard of § 244. Such motions will not be granted "when a prima facie case of eligibility for the relief sought has not been established." Matter of Lam, 14 I. & N. Dec. 98 (BIA 1972). See Matter of Sipus, 14 I. & N. Dec. 229 (BIA 1972).
Respondents, husband and wife, are natives and citizens of Korea who first entered the United States in January 1970 as nonimmigrant treaty traders. They were authorized to remain until January 10, 1972, but they remained beyond that date without permission and were found deportable after a hearing in November 1974. They were granted the privilege of voluntarily departing by February 1, 1975. They did not do so. Instead, they applied for adjustment of status under § 245 of the Act, 8 U. S. C. § 1255, but were found ineligible for this relief after a hearing on July 15, 1975.*fn4 Their appeal from this ruling was dismissed by the Board of
Immigration Appeals in October 1977. Respondents then filed a second motion to reopen their deportation proceedings in December 1977, this time claiming suspension under § 244 of the Act. Respondents by then had satisfied the 7-year-continuous-physical-presence requirement of that section. The motion alleged that deportation would result in extreme hardship to respondents' two American-born children because neither child spoke Korean and would thus lose "educational opportunities" if forced to leave this country. Respondents also claimed economic hardship to themselves and their children resulting from the forced liquidation of their assets at a possible loss. None of the allegations was sworn or otherwise supported by evidentiary materials, but it appeared that all of respondents' close relatives, aside from their children, resided in Korea and that respondents had purchased a dry-cleaning business in August 1977, some three years after they had been found deportable. The business was valued at $75,000 and provided an income of $650 per week. Respondents also owned a home purchased in 1974 and valued at $60,000. They had $24,000 in a savings account and some $20,000 in miscellaneous assets. Liabilities were approximately $81,000.
The Board of Immigration Appeals denied respondents' motion to reopen without a hearing, concluding that they had failed to demonstrate a prima facie case that deportation would result in extreme hardship to either themselves or their children so as to entitle them to discretionary relief under the Act. The Board noted that a mere showing of economic determinant is not sufficient to establish extreme hardship under the Act. See Pelaez v. INS, 513 F.2d 303 (CA5), cert. denied, 423 U.S. 892 (1975). This was particularly true since respondents had "significant financial resources and there [was] nothing to suggest that the college-educated male respondent could not find suitable employment in Korea." With respect to the claims involving the children, the Board ruled that the alleged loss of educational opportunities to the
young children of relatively affluent, educated Korean parents did not constitute extreme ...