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Urban v. Immigration And Naturalization Service

August 21, 1997




Petition for Review of an Order of the Board of Immigration Appeals A29 639 007

Before ROVNER, DIANE P. WOOD, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

Argued May 27, 1997

Decided August 21, 1997

Helena Urban is a widowed, 65-year-old Polish citizen. In August 1985 she left her communist homeland and entered the United States as a nonimmigrant visitor for pleasure. She overstayed her visa, and in 1992 the INS commenced deportation proceedings. Urban conceded deportability but applied for suspension of deportation under sec. 244(a)(1) of the Immigration and Nationality Act. An immigration judge denied her request, finding Urban was not eligible for suspension of deportation because she had not shown that she would suffer extreme hardship if deported. The Board of Immigration Appeals, sitting en banc, affirmed, *fn1 and this appeal followed. Because we conclude the Board failed to adequately consider a number of factors relevant to extreme hardship, we reverse and remand Urban's case to the Board for further proceedings. First, the facts.

Urban was born in rural Poland in 1932. Because her family was poor, Urban received only a limited education. In all, she attended grade school for 5 years. However, because her family could not afford to buy her warm clothes, Urban did not attend school in the winter. Urban married at age 18, and she and her husband had three children: Krystyna, Tadeusz, and Ewa. When her youngest child was 8 years old Urban's husband died. After his death Urban attempted to support her children by farming. Several years before leaving Poland, however, she became unable to handle the work and moved in with her son, Tadeusz, who had landed a job as an agricultural engineer. Until she left for the United States, Urban looked after Tadeusz's children and tried to earn a few zlotys here and there by selling hand-sewn embroidery pieces.

In August 1985 Urban left Poland and entered the United States on a 6-month tourist visa. She immediately applied for asylum (apparently that request was denied) and received employment authorization. From 1985 to 1988 she worked as a babysitter. Since then she has cleaned office buildings in metropolitan Chicago. She generally works weekdays from 5 p.m. to midnight and nets around $600 per month. She has consistently paid her taxes and never received public assistance. As of October 1996 she had earned approximately 37 of the 40 credits needed to qualify for social security. If she has continued to work, Urban will qualify for a modest pension around the time this opinion is issued.

Urban has lived with Maria and Stanley Orzel since 1988, and in exchange for room and board she takes care of the Orzels' daughter, Michelle. For example, because Maria Orzel at one time worked from 7 a.m. to 7 p.m. each day, Urban walked Michelle to and from school and prepared her meals. Michelle, for what it's worth, calls Urban "Grandma."

Urban uses some of her modest income to support her children, who are barely making ends meet in Poland. Ewa, who is married to an often-unemployed coal miner, has two kids, and lives with her in-laws, receives the most regular support. Urban sends her at least $100 per month to help feed her family. *fn2 Whenever possible, Urban also sends money to Krystyna, who is struggling to support her four children and her disabled husband. For example, when Krystyna was hospitalized in 1994 and unable to pay her hospital bills, Urban dipped heavily into her savings and sent Krystyna $2,000. Finally, Urban sometimes sends cash to Tadeusz, who supports his wife, two children, and his mother-in-law.

Because Urban is uninsured and suffers from a number of health-related problems, she uses much of her remaining income to pay for her own medical care. For example, since 1990 she has suffered from left ventricular hypertrophy, a chronic heart condition. That condition has, in turn, triggered hypertension, for which Urban must take medication on a daily basis. Finally, Urban suffers from secondary anemia, arthritis, and allergies. Her doctor predicts she will continue to require "pharmacotherapy, including hypertensive medications, NSAID group [nonsteroidal anti-inflammatory drugs], and possible antihistamine with vitamins."

In May 1992 the INS issued an order to show cause why Urban should not be deported. Urban admitted she overstayed her visa but asked for a chance to seek suspension of deportation. An immigration judge gave her 45 days to apply and scheduled a hearing on the matter for October 15, 1992. Urban's request was eventually denied after her lawyer, who has since been disbarred for malpractice in other cases, failed to file her application. Urban then hired a new lawyer, who convinced the immigration judge to reopen her file.

In February 1995, at a new hearing on her request for suspension of deportation, Urban testified to the hardships she would suffer if she were sent back to Poland. She explained she would lose her job and be unable to qualify for a social security pension. She added that, given her age, health, and minimal education, she would be completely unable to find work and left without any means to pay for food, shelter, or medical care. Urban also testified that although her children loved her, they had neither the room nor the resources to take her in. Next, Urban stated that she would suffer emotionally if she were forced to become a burden on the children whom she had been working so hard to support. Finally, she submitted letters from her physicians describing her various ailments and volunteered to submit to an examination by a doctor from the public health service. The INS declined the opportunity to examine Urban.

The immigration judge also heard testimony from two lay witnesses. First, Maria Orzel explained her family's love for Urban and testified that on a recent trip to Poland she witnessed the poor financial state of two of Urban's children. Next, Jaroslaw Cholodecki, a Chicago-based journalist who often travels to his native Poland, receives the daily news from his homeland via wire services, and has a master's degree in economics, testified that Poland's unemployment rate is very high, topping 50 percent in some areas. He added Poland offers only very limited medical care to its poor and that, even in public hospitals, patients must provide much of their own medication and supplies.

The immigration judge found Urban had presented a "sympathetic case" but had not shown she would suffer extreme hardship if deported. He noted although Urban would be completely unemployable in Poland, would not receive social security, and would be forced to live with the children she had been supporting, economic factors alone cannot give rise to extreme hardship. He added that Tadeusz could probably find a way to care for his mother and that being reunited with her children would soften the blow of deportation for Urban. He also concluded Urban's medical problems did not "raise her claim to the level of extreme hardship." He reasoned that she has been able to work despite her ailments and that the Orzels could somehow send her any medicines she couldn't get her hands on in Poland. ...

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