KANNE, Circuit Judge.
William Palmer petitions for review of an order of the Board of Immigration Appeals (BIA) denying his applications for relief from deportation under §§ 245 and 249 of the Immigration and Nationality Act, 8 U.S.C. §§ 1255 and 1259. For the reasons set forth in this opinion, we deny the petition for review and affirm the decision of the BIA.
Palmer, a native and citizen of Canada, was born in 1923. He unsuccessfully attempted to enter the United States in 1950 and again in 1951. The 1951 exclusion was based on his conviction in Canada for fraud
In April 1986, the Immigration and Naturalization Service (INS) issued an order to show cause charging Palmer with being deportable because he had entered the United States without a valid immigrant visa. Sections 212(a)(20) and 241(a)(1), 8 U.S.C. §§ 1182(a)(20), 1251(a)(1). In May 1987, the INS filed a second charge of deportability on the ground that, in 1951, Palmer had sought (and achieved) admission to the country without the Attorney General's permission within one year of having been excluded. Section 212(a)(16), 8 U.S.C. § 1182(a)(16).
In an effort to escape deportation, Palmer then sought relief from the IJ under §§ 245 and 249 of the INA, 8 U.S.C. §§ 1255 and 1259. Section 245(a) provides that the Attorney General may, in her discretion, adjust the status of an alien inspected and admitted or paroled into the United States to that of an alien lawfully admitted for permanent residence if: (1) the alien applies for such adjustment, (2) he is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.
The IJ found that a visa was available to Palmer, based on an immediate relative petition filed by his son, and that Palmer had been inspected at the time of his last entry into the United States (sometime in 1981 or
Consequently, in order to remain eligible for adjustment of status, Palmer had to seek a waiver of inadmissibility from the IJ under § 212(h) of the INA, 8 U.S.C. § 1182(h).
The INS appealed to the BIA. In an opinion and order issued in May 1992, the BIA reversed the IJ's decision, holding that Palmer had not established "extreme hardship" within the meaning of § 212(h), and did not merit relief under either § 245 or § 249 in the exercise of the Attorney General's discretion. The opinion begins by reviewing recent changes to § 212(h) under the Immigration Act of 1990 as well the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub.L. 102-232, 105 Stat. 1733 (1991). The BIA determined that, under the amended version of § 212(h), Palmer was still required to demonstrate his eligibility for a favorable exercise of the Attorney General's discretion by establishing that his children would suffer extreme hardship if he were deported. See 8 U.S.C. § 1182(h)(1)(B).
The BIA went on to conclude that Palmer would not otherwise merit a § 212(h) waiver in the exercise of discretion. In Palmer's favor, the BIA considered his residence of forty years in the United States, his stable employment history, and his regular payment of taxes. However, in the BIA's view, these factors did not overcome Palmer's 1986 conviction for contributing to the sexual delinquency of a child. The BIA noted that, at his deportation hearing before the IJ, Palmer explained that he had been accused by a former girlfriend of fondling her six-year old daughter after he had refused to give the woman money to buy a home. Palmer decided to plead guilty to the misdemeanor charge in order to avoid adverse publicity that could damage his business and his family. The BIA held, however, that Palmer could not use the circumstances surrounding the charge to impeach an otherwise valid conviction. In light of "the recency and the serious nature" of the crime, the BIA stated that it would decline to exercise its discretion favorably under § 212(h), and denied Palmer's application for adjustment of status.
The BIA next considered Palmer's application for admission or "registry" under § 249, 8 U.S.C. § 1259. This provision permits the Attorney General, in her discretion, to establish a record of lawful admission for an alien who has been present in the United States for a prescribed period of time, making the individual eligible to remain in the country. See Rodriguez-Barajas v. INS, 992 F.2d 94, 97 (7th Cir.1993); De Lucia, 370 F.2d at 307-08. The alien "shall satisfy the Attorney General that he is not inadmissible under section 212(a) ... insofar as it relates to criminals, procurers and other immoral persons," and must establish that he entered the United States before January 1, 1972, has made this nation his residence continuously since then, is of good moral character, and is eligible for citizenship. The BIA concluded that, for the reasons Palmer did not merit discretionary relief under § 212(h), he would not be granted discretionary relief under § 249. The BIA did, however, find that Palmer was statutorily eligible for voluntary departure under § 244(e) of the INA, 8 U.S.C. § 1254(e), and granted him such in the exercise of discretion.
Palmer filed a timely petition for review of the BIA's decision. We have jurisdiction under § 106(a) of the INA, 8 U.S.C. § 1105a(a). Oviawe v. INS, 853 F.2d 1428, 1430 (7th Cir.1988).
The BIA's determination that Palmer failed to demonstrate his children would suffer extreme hardship if he were deported is reviewed for abuse of discretion. Hassan v. INS, 927 F.2d 465, 467 (9th Cir.1991); Osuchukwu, 744 F.2d at 1140. Our examination "is limited to whether the discretion was actually exercised and whether it was exercised in an arbitrary and capricious manner." Garcia-Lopez v. INS, 923 F.2d 72, 74 (7th Cir.1991). See also Foti v. INS, 375 U.S. 217, 228, 84 S.Ct. 306, 313, 11 L.Ed.2d 281 (1963). Accordingly, the BIA's decision on this issue will be upheld unless it was without rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group. Esposito v. INS, 936 F.2d 911, 915 (7th Cir.1991); Garcia-Lopez, 923 F.2d at 74; Hernandez-Patino v. INS, 831 F.2d 750, 752 (7th Cir.1987); Patel, 811 F.2d at 382.
Palmer makes essentially three arguments. First, that he is eligible for a waiver of inadmissibility under § 212(h) because he has demonstrated that his children would suffer extreme hardship if he were deported. Second, that the BIA either failed to exercise discretion in denying the § 212(h) waiver, or that it exercised its discretion in an arbitrary and capricious manner. Third, that, notwithstanding his eligibility for a § 212(h) waiver and adjustment of status under § 245, the BIA abused its discretion by not reviewing his statutory eligibility for relief under § 249.
We find that Palmer's arguments do not require extended discussion. This case boils down to whether or not the BIA exercised its discretion to deny relief from deportation in a reasoned way. In denying Palmer's application for adjustment of status under § 245, the BIA found that he had failed to establish that his children would suffer extreme hardship under § 212(h) if he were deported. Alternatively, the BIA ruled that, the statutory requirement of extreme hardship aside, Palmer did not merit discretionary relief under § 212(h) because his 1986 conviction outweighed the equities in his favor.
In a case such as this, the alien bears the burden of demonstrating both statutory eligibility and equities meriting favorable exercise of the Attorney General's discretion. See Hernandez-Patino, 831 F.2d at 752; Bueno-Carrillo v. Landon, 682 F.2d 143, 145 (7th Cir.1982). This circuit has not yet determined what constitutes "extreme hardship" under § 212(h). However, this phrase also appears in § 244(a)(1) of the INA, 8 U.S.C. § 1254(a)(1), which authorizes suspension of deportation,
The Supreme Court has held that the BIA has the authority to construe "extreme hardship" narrowly. INS v. Wang, 450 U.S. 139, 145, 101 S.Ct. 1027, 1031, 67 L.Ed.2d 123 (1981). See also Hernandez-Patino, 831 F.2d at 752; Bueno-Carrillo, 682 F.2d at 145. "The application of the `extreme hardship' requirement is committed to the BIA and will not be overturned simply because we might prefer another interpretation of the statute." Alvarez-Madrigal v. INS, 808 F.2d 705, 707 (9th Cir.1987). Thus, while we require the BIA to consider the relevant factors in the aggregate, rather than in isolation, Bueno-Carrillo, 682 F.2d at 146 n. 3; Hassan, 927 F.2d at 467, we will not determine the weight to be afforded each factor. Garcia-Lopez, 923 F.2d at 74.
In general, "[e]xtreme hardship will not be found absent a showing of significant actual or potential injury." Hassan, 927 F.2d at 468. This means "at least hardship substantially different from and more severe
Under the standard for extreme hardship established by our cases and the cases of other circuits, it is clear that the BIA did not abuse its discretion by finding Palmer had failed to establish that his children would suffer extreme hardship if he were deported. The children are self-sufficient adults; the record does not indicate that they depend to any significant degree on financial assistance from their father. While separation from him will cause the children anxiety, this is not enough to justify a finding of extreme hardship. "General allegations of emotional hardship caused by severing family and community ties are a common result of deportation." Marquez-Medina, 765 F.2d at 675. See Hernandez-Patino, 831 F.2d at 754-55; Sullivan v. INS, 772 F.2d 609, 610-11 (9th Cir.1985).
Palmer suggests that the future financial burden to his children of caring for an elderly parent who lives in another country may be extreme. He points out that, while he has tentatively established some contact with a brother, he does not know the whereabouts of his other siblings or if he has nieces and nephews in Canada. However, Palmer does not claim, and there is there is nothing in the record to indicate, that he has depended on his children financially in the past, or that his care in the future would have been provided by his children under any circumstances. He lives alone. At the time of the deportation proceedings he was still working, despite having surpassed the age of retirement.
Palmer's age — approximately seventy — is perhaps the most important factor in determining the possibility of financial hardship to his children if he is deported from this country. The statute draws no distinction based on age, however, and we point out that this hardship would typically exist in almost every case in which a person of retirement age is deported. INS regulations provide a mechanism for aliens in Palmer's position to bring new evidence or changed circumstances to the attention of the BIA. Such evidence may be presented by filing a motion to reopen the case under 8 C.F.R. § 3.2. See Sivaainkaran v. INS, 972 F.2d 161, 166 (7th Cir.1992); Kaczmarczyk v. INS, 933 F.2d 588, 597 (7th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 583, 116 L.Ed.2d 608 (1991).
To the best of our knowledge, Palmer has not filed a motion to reopen in order to submit evidence that his financial condition or health has taken a turn for the worse. Thus, on the record before us, the possibility that future care for their father would result
We also think that the BIA's refusal to grant discretionary relief under § 212(h) was proper. Palmer contends that the BIA failed to exercise discretion because it placed inordinate weight on his 1986 conviction and did not sufficiently consider the circumstances surrounding that event. Alternatively, he argues that, for the same reasons, any exercise of discretion was arbitrary and capricious.
A review of the opinion demonstrates that the BIA considered the equities favoring Palmer: his lengthy residence in the United States, stable employment history, and payment of taxes. In addition, the BIA considered Palmer's testimony that he was charged with the crime of contributing to the sexual delinquency of a child by a former girlfriend to whom he had refused to lend money. Finally, the BIA noted that Palmer had pleaded guilty to the misdemeanor crime in order to avoid obloquy and protect his family and business. Nonetheless, having weighed these factors, the BIA concluded that they were not sufficient to overcome the conviction itself.
Palmer would have us consider anew that, at the time he refused his former girlfriend's request, she stated she would get the money "by hook or by crook." He also asks us to consider that he was originally charged with several counts of aggravated criminal sexual assault and aggravated criminal sexual abuse that, upon investigation, were dropped and subsequently replaced with a single misdemeanor count of contributing to the sexual delinquency of a child. Finally, he points out that the sentencing court allowed him to maintain his innocence while pleading guilty to this charge.
These arguments were presented to and considered by the BIA. That the case against Palmer may have been weak (a view taken by the IJ) does not result in a finding that the BIA improperly refused discretionary relief. As the BIA correctly observed, an alien may not collaterally attack an otherwise valid state court conviction, or go behind the judicial record to determine, in immigration proceedings, the guilt or innocence of the alien. Guillen-Garcia v. INS, 999 F.2d 199, 205 (7th Cir.1993); Rassano v. INS, 377 F.2d 971, 974 (7th Cir.1966); Trench v. INS, 783 F.2d 181, 184 (10th Cir.), cert. denied, 479 U.S. 961, 107 S.Ct. 457, 93 L.Ed.2d 403 (1986); Avila-Murrieta v. INS, 762 F.2d 733, 736 (9th Cir.1985); Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir.1981); Chiaramonte, 626 F.2d at 1098 (foreign conviction); Matter of Goldeshtein, ___ I. & N.Dec. at ___, Int. 3158. The favorable exercise of discretion is "an extraordinary act and a matter of grace." Patel v. INS, 738 F.2d 239, 242 (7th Cir. 1984). Thus, the relative significance of the 1986 conviction is to be determined by the BIA in the first instance; it need not share Palmer's perspective on the events that resulted in the guilty plea.
The BIA's opinion demonstrates that it reflected on the balance of favorable and unfavorable factors in denying discretionary relief. The BIA does not have to "write an exegesis on every contention. What is required is merely that it consider the issues raised and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted." Becerra-Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir.1987). See also Vergara-Molina v. INS, 956 F.2d 682, 685 (7th Cir.1992).
Having considered Palmer's arguments, the BIA determined that the crime to which
Palmer argues that the BIA abused its discretion by not reviewing his statutory eligibility for relief under § 249, the registry statute. For the reasons that precluded discretionary relief under § 245, however, the BIA concluded that Palmer did not merit relief under § 249 in the exercise of discretion. "[I]f the Attorney General decides relief should be denied as a matter of discretion, the statutory eligibility requirements need not be addressed." Hernandez-Patino, 831 F.2d at 752. See also Patel, 811 F.2d at 380; Matter of Goldeshtein, ___ I. & N. Dec. at ___, Int. 3158. The denial of discretionary relief under § 212(h) was proper. It follows that denial of essentially identical relief under § 249 was also proper.
Deportation will undoubtedly work hardship in this case, both to William Palmer and to his family. However, the BIA's findings that Palmer had failed to demonstrate both statutory eligibility and equities meriting a favorable exercise of discretion under § 212(h) do not constitute an abuse of discretion. Palmer's applications for relief under §§ 245 and 249 were appropriately denied.
The petition for review is DENIED; the order of the BIA is AFFIRMED.
We point out that a motion to reopen does not automatically stay a deportation order. Id. § 3.8(a); Castaneda-Suarez v. INS, 993 F.2d 142, 145 (7th Cir.1993).