Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 92 C 21--James T. Moody, Judge.
Before POSNER, Chief Judge, and EASTERBROOK and ROVNER, Circuit Judges.
Petition for Review of an Order of the Board of Immigration Appeals.
Daniel Salameda and his wife Angelita came to the United States from the Philippines in 1982. Salameda had a student visa; his wife was admitted as the spouse of, and their two-year-old child, Lancelot, as the child of, a nonimmigrant student. The visa was for one year, and two days after it expired Salameda went to an office of the Immigration and Naturalization Service in an effort to renew it. Whether he could have renewed the visa had he sought to do so before it expired, and whether he might have been eligible for some kind of discretionary relief after missing the deadline, are issues shrouded in legal and factual uncertainty; the parties have not addressed them; nor will we. The only result of Salameda's effort to renew his visa was to precipitate deportation proceedings against him and his wife. The proceedings dragged on in the usual manner until 1991, when the Salamedas appeared at a hearing before an immigration judge at which they conceded deportability but requested suspension of deportation under section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. sec. 1254(a)(1). The immigration judge turned down their request and the Board of Immigration Appeals affirmed.
To invoke the discretion of the Attorney General (delegated to the Board of Immigration Appeals) to suspend deportation under section 244(a)(1), the alien must prove that he has been physically present in the United States for at least seven years during which he was a person of good moral character, and--the issue here--that his deportation would "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." It is up to the Board to decide what shall count as "extreme hardship." Judicial review is limited to making sure that the Board has considered in a rational fashion the issues tendered by the alien's application. Palmer v. INS, 4 F.3d 482, 486 (7th Cir. 1993).
The proceedings of the Immigration and Naturalization Service are notorious for delay, and the opinions rendered by its judicial officers, including the members of the Board of Immigration Appeals, often flunk minimum standards of adjudicative rationality. E.g., Osmani v. INS, 14 F.3d 13, 14 (7th Cir. 1994); Rodriguez-Barajas v. INS, 992 F.2d 94, 97 (7th Cir. 1993); Bastanipour v. INS, 980 F.2d 1129, 1131, 1133 (7th Cir. 1992); Osaghae v. INS, 942 F.2d 1160, 1163-64 (7th Cir. 1991); Watkins v. INS, 63 F.3d 844, 849-50 (9th Cir. 1995); Osorio v. INS, 18 F.3d 1017, 1028-30 (2d Cir. 1994). The lodgment of this troubled Service in the Department of Justice of a nation that was built by immigrants and continues to be enriched by a flow of immigration is an irony that should not escape notice. We imagine that Congress is more to blame than the Department or even the INS itself. The agency is absurdly understaffed. In 1994, when it decided the Salamedas' appeal from the decision by the immigration judge to deport them, the Board of Immigration Appeals had an effective membership of only four--to handle the more than 14,000 appeals lodged with the Board that year.
There is no doubt that the Salamedas will experience hardship as a result of being deported to the Philippines with uncertain prospects of ever being readmitted to the United States. Besides Lancelot, now 15 years old, who has lived in the United States since he was 2, the Salamedas have a child born in the United States (hence a U.S. citizen) who is now almost 7. It is hardly to be supposed that the Salamedas would leave their children in the United States. Of course, as the INS's counsel reminded us at argument, it is the Salamedas' "fault" that their children face the prospect of deportation to an alien land. Had the Salamedas returned to the Philippines when Daniel Salameda's student visa expired, Lancelot would have been quickly reacculturated to Philippine ways and the second child would have been born and raised in the Philippines. Although the Board can if it wants give less weight to hardship factors that accrued during the period of illegal residence in the United States, Garcia-Lopez v. INS, 923 F.2d 72, 74 (7th Cir. 1991); Salas-Velazquez v. INS, 34 F.3d 705, 709 (8th Cir. 1994); Sullivan v. INS, 772 F.2d 609, 611 (9th Cir. 1985), the only factor that the Board (actually the immigration judge) discounted here on that ground was the Salamedas' purchase of a house. The statutory provision is available only to aliens who have resided in the United States for at least seven years, normally illegally, and these aliens cannot be expected to live in a state of suspended animation until their status is resolved; here that would have required the Salamedas to postpone conceiving a second child for thirteen years. The Board traditionally considers long residence in the United States a source of extreme hardship. E.g., In re Pena-Diaz, 1994 WL 442053 (BIA Aug. 4, 1994); In re Woo, 10 I. & N. Dec. 347, 350 (BIA 1963) (15 years); In re Huey, 13 I. & N. Dec. 5, 7 (BIA 1968). And it is not as if the Salamedas had been fugitives during this period.
The remaining element of hardship in this case concerns the extensive round of community and charitable activities in which both adult Salamedas engage in their home town of Rockford, Illinois. One might wonder how the termination of these activities could constitute a hardship to the aliens, as distinct from a hardship to their communities. The answer is that these activities are evidence of a high degree of integration of the aliens into the community, increasing the wrench to them of being expelled from it. Villena v. INS, 622 F.2d 1352, 1357 (9th Cir. 1980). A number of decisions by federal courts of appeals hold (none to the contrary) that the Board, in considering whether "extreme hardship" has been shown, must consider the alien's "community assistance." Turri v. INS, 997 F.2d 1306, 1310 (10th Cir. 1993); Zamora-Garcia v. INS, 737 F.2d 488, 495 (5th Cir. 1984); Zavala-Bonilla v. INS, 730 F.2d 562, 568 (9th Cir. 1984); Santana-Figueroa v. INS, 644 F.2d 1354, 1357 (9th Cir. 1981). As an original matter, bearing in mind the lack of any statutory definition of extreme hardship and the deference (of which more shortly) that judges owe to administrative interpretations of open-ended regulatory statutes, we might be inclined to doubt the soundness of these decisions. Community assistance does not seem so organic to the concept of extreme hardship as to require the Board, as a matter of law, to consider it. But because the government acknowledges in its brief the Board's obligation to consider community assistance in deciding whether extreme hardship has been shown, this is hardly the right case in which to create an intercircuit conflict on the issue.
The Board itself may have decided, in the exercise of its discretion to interpret the vague statutory term "extreme hardship," that community assistance should be considered. This would bolster the judicial interpretations that we have been discussing, but it would also have independent significance for our review of the order of deportation. An agency may not abandon an interpretation without an explanation, not here attempted. E.g., Guillen-Garcia v. INS, 60 F.3d 340, 342 n. 4 (7th Cir. 1995); Dashto v. INS, 59 F.3d 697, 703 (7th Cir. 1995); Busboom Grain Co. v. ICC, 856 F.2d 790, 796 (7th Cir. 1988). Agencies do not have the same freedom as courts to change direction without acknowledging and justifying the change. E.g., Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 41-42 (1983); Blankenship & Associates, Inc. v. NLRB, 999 F.2d 248, 251 (7th Cir. 1993); Continental Web Press, Inc. v. NLRB, 742 F.2d 1087, 1093-94 (7th Cir. 1984). In Turri v. INS, supra, 997 F.2d at 1310, the Tenth Circuit said that the Board interprets extreme hardship to require consideration of community assistance, and although we can find only the barest hint of that position in the Board's decisions, In re Anderson, 16 I. & N. Dec. 596, 597 (BIA 1978); In re Ige, 1994 WL 520996 (BIA Sept. 16, 1994); In re Lum, 11 I. & N. Dec. 295, 297-98 (BIA 1965) (deportee's substantial investment in restaurant), it may be significant that in this case the immigration judge considered the factor and the Board said that he had considered all the factors that are legally relevant to a judgment of extreme hardship. The Board did not say or hint that the administrative law judge had wasted his time in considering the Salamedas' contribution to their community. In view of this we can hardly ignore what the immigration judge said or the record that was before him.
We are far from concluding that it is in fact the Board's position that community assistance is an element of extreme hardship. But in light of the holdings of the other circuits and the Board's apparent acquiescence in the immigration judge's adoption of that position and the government's acknowledgment that it is the Board's position, we think it is the law of this case that community assistance must be considered. The government's lawyer may be wrong but we think she probably knows the Board's collective mind better than we do.
Whether the impact on the children of expulsion to the Philippines plus the termination of the Salamedas' volunteer activities sums to extreme hardship may be doubted, depending on the force of "extreme" or, what is the same issue really, the typicality of the Salamedas' plight. But that is not the issue for us. The power of the Board to uphold the deportation of people whose showing of extreme hardship is no stronger than the Salamedas' is not in question. The cases emphasize the breadth of the Board's discretion, though the most ringing statements appear in decisions involving denial of motions to reopen deportation proceedings, a different setting from the present case. E.g., INS v. Abudu, 485 U.S. 94 (1988); INS v. Rios-Pineda, 471 U.S. 444 (1985); INS v. Jong Ha Wang, 450 U.S. 139 (1981). We accept absolutely that we are not to substitute our statutory interpretation for that of the Board in cases in which the statute is ambiguous, id. at 144, and that is why we expressed skepticism earlier as to the propriety of courts' deciding that community assistance must be considered in evaluating a claim of "extreme hardship"--unless the Board decides to do so, which, however, it may have done.
The issue that we decide today is not one of statutory interpretation. It is whether the INS's judicial officers addressed in a rational manner the questions that the aliens tendered for consideration. They did not. The two opinions, that of the immigration judge and that of the Board of Immigration Appeals, are incomprehensible at the critical junctures--the issue of hardship to the children and the issue of community service. With regard to the first, the immigration judge stated flatly that the statute precluded his considering the hardship to Lancelot, who neither is a citizen nor was admitted to the United States for permanent residence. Apart from the aliens themselves who are asking for suspension of deportation (Mr. and Mrs. Salameda), these are indeed the only classes of person whose hardship is to be considered. For this reason the Salamedas' lawyer asked that Lancelot be named a party to the deportation proceeding, but the INS refused. In order to economize on its limited resources, the INS usually does not bother to institute a formal deportation proceeding against an alien who is likely to depart anyway, such as the minor child of parents who are being deported. INS Operations Instructions Manual sec. 242.1a(22) (A)(1). But the only motivation we can think of for the INS's refusing to include such an alien, at the parents' request, in the pending proceeding is--since Lancelot has no greater right than his parents to remain in the United States--to prevent the hardship to him from being considered. This strikes us as an ignoble ploy. Since Lancelot will have to follow his parents into exile, having no legal right to remain in the United States, he is constructively deported and should therefore, one might suppose, be entitled to ask--or more realistically his parents' lawyer should be entitled to ask on his behalf--for suspension. The Board of Immigration Appeals did not mention Lancelot in its opinion, but since it "affirmed [this aspect of the immigration judge's opinion] in all respects," we take it that it agreed with his refusal to consider the hardship to Lancelot. For all that appears, Lancelot has no competence in any language other than English. The extent to which this or other aspects of his upbringing would impair his chances of adjusting to Philippine society is an element of potential hardship that the Immigration and Naturalization Service is not free to disregard without any explanation.
We are mindful that many cases say that the hardship to the deportee's noncitizen family is not to be considered. E.g., Marquez-Medina v. INS, 765 F.2d 673, 676 n. 4 (7th Cir. 1985); Bueno-Carrillo v. Landon, 682 F.2d 143, 145 n. 2 (7th Cir. 1982); Carnalla-Munoz v. INS, 627 F.2d 1004, 1006 (9th Cir. 1980). This of course is what the statute says. None of the cases, however, addresses the possibility that the noncitizen family member, because a child, will in effect be deported as well and is therefore entitled to ask for relief on his own account, as it were. It would be curious if the fact that a family member was not the formal target of the deportation order had the effect of depriving that person of the right to request suspension of deportation. Maybe that is how the statute ought to be read, but we think the Board has an obligation to consider this novel interpretive question, which the Salamedas are pressing and no court has considered (nor the Board), rather than ignore it, as the Board did. (There is no contention that the Salamedas waived the issue at any stage of these proceedings.) It would be premature for us to attempt to resolve it without the views of the Board. Batanic v. INS, 12 F.3d 662, 665 (7th Cir. 1993); see also ...