IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. VIRGINIA HECTOR No. 86-21 In the Supreme Court of the United States October Term, 1986 Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit The solicitor General, on behalf of the Immigration and Naturalization Service, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case. TABLE OF CONTENTS Opinions below Jurisdiction Statutes involved Questions Presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-6a) is reported at 782 F.2d 1028 (Table). The opinions of the Board of Immigration Appeals (App., infra, 9a-14a) and of the immigration judge (App., infra, 15a-19a) are unreported. JURISDICTION The judgment of the court of appeals was entered on December 20, 1985. A petition for rehearing, with suggestion for rehearing en banc, was denied on February 10, 1986 (App., infra, 8a). On May 1, 1986, Justice Brennan extended the time within which to file a petition for a writ of certiorari to and including July 10, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES INVOLVED 1. 8 U.S.C. 1254(a) provides in pertinent part: As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien (other than an alien described in section 1251(a)(19) of this title) who applies to the Attorney General for suspension of deportation and -- (1) is deportable under any law of the United States except the provisions specified in paragraph (2) of this subsection; has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and 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 * * * . 2. 8 U.S.C. 1101(a)(35) provides: The term(s) "spouse", "wife", or "husband" do not include a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated. 3. 8 U.S.C. 1101(b) provides: As used in subchapters I and II of this chapter -- (1) The term "child" means an unmarried person under twenty-one years of age who is -- (A) a legitimate child; (B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred; (C) a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation; (D) an illegitimate child, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother; (E) a child adopted while under the age of sixteen years if the child has thereafter been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: Provided, That no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter; or (F) a child, under the age of sixteen at the time a petition is filed in his behalf to accord a classification as an immediate relative under section 1151(b) of this title, who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the preadoption requirements, if any, of the child's proposed residence; Provided, That the Attorney General is satisfied that proper care will be furnished if the child is admitted to the United States: Provided further, That no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter. 4. 8 U.S.C. 1101(b)(2) provides: The terms "parent", "father", or "mother" mean a parent, father, or mother only where the relationship exists by reason of any of the circumstances set forth in subdivision (1) of this subsection. QUESTION PRESENTED Whether an alien may demonstrate extreme hardship to "his * * * child" for purposes of obtaining a suspension of deportation under the Immigration and Nationality Act of 1952 by showing hardship to persons who do not fall within the statutory definition of "child." STATEMENT 1. Respondent, a native and citizen of Dominica, West Indies, entered the United States in April 1975 as a nonimmigrant visitor for pleasure. She was authorized to stay in the United States until April 30, 1975, but remained beyond that date without obtaining permission from immigration authorities. Respondent is unmarried and has four children. Three of her children are natives and citizens of Dominica and live there with respondent's parents. Respondent's youngest child, who was eight years old at the time of the court of appeals' decision in this case, lives with her in the United States. Two of respondent's nieces are United States citizens; at the time of the court of appeals' decision, they were nine and ten years old and had been living with respondent for two years. Those nieces, whose parents reside in Dominica, came to the United States to attend school here. App., infra, 1a-2a. 2. In July 1982, the Immigration and Naturalization Service (INS) charged respondent with deportability under Section 241(a)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1251(a)(2). At the deportation hearing, respondent conceded deportability and applied for suspension of deportation pursuant to Section 244(a)(1) of the Act, 8 U.S.C. 1254(a)(1). App., infra, 2a. Section 244(a)(1) authorizes the Attorney General, in his discretion, to suspend deportation of a deportable alien, if the alien can show that (1) he has been physically present in the United States for a continuous period of at least seven years immediately preceding the application for suspension of deportation; (2) he has been a person of good moral character during that seven year period; and (3) deportation would result in extreme hardship to the alien or to his spouse, parent, or child who is a United States citizen or a lawful permanent resident. 8 U.S.C. 1254(a)(1). 3. The immigration judge denied respondent's request for suspension of deportation on both statutory and discretionary grounds (App., infra, 15a-19a). The judge found that, while respondent had been physically present in the United States for seven years and was a person of good moral character, she had failed to meet the requisite showing of extreme hardship (App., infra, 16a-19a). Based on the evidence at the hearing -- which showed that respondent's mother, father, brothers, sisters, and three of respondent's children all lived in Dominica -- the judge concluded that respondent's ties appeared stronger in Dominica than in the United States. Moreover, the judge found that respondent was young, healthy, and able to support herself. As a result, the judge ruled that respondent had not established extreme hardship to herself. App., infra, 17a, 19a. In addition, the judge found that there was insufficient evidence to support respondent's claim that her child would suffer extreme hardship as a result of purportedly better educational opportunities in the United States than in Dominica (App., infra, 17a-18a), and therefore concluded that respondent had failed to establish extreme hardship to her child as well (App., infra, 19a). The immigration judge refused to consider whether the respondent's two nieces would suffer extreme hardship as a result of respondent's deportation. Respondent had argued that the nieces should be viewed as her children, for purposes of 8 U.S.C. 1254(a)(1), because of the close relationship she had with them. In rejecting that argument, the immigration judge stated (App., infra, 19a): The argument that the Respondent has a parental relationship with the two children is without precedent and the Court has -- cannot -- find any such fixed relationship existing. Even, assuming arguendo, that such precedent exists, the fact (is) that the Respondent has resided with these two children, for only a year and a half and it's difficult to find * * * that the children would have replaced their mother and father, with the Respondent. The immigration judge granted respondent a voluntary departure within three months, but ruled that she would be deported to Dominica if she did not leave within that time (ibid.). 4. On appeal to the Board of Immigration Appeals (BIA), respondent argued that under the Third Circuit's decision in Tovar v. INS, 612 F.2d 794 (3d Cir. 1980), the immigration judge had erred in refusing to consider the hardship to her two nieces. /1/ In rejecting respondent's contention, the BIA noted (App., infra, 13a): We * * * conclude that it was not error, in an assessment of extreme hardship, for the immigration judge to circumscribe the respondent's testimony concerning the hardships which her nieces may encounter if she returns to Dominica. The statute does not specifically denominate nieces among those family members whose hardships, if extreme, would permit suspension of deportation. * * * (R)espondent's nieces lived for most of their formative years in Dominica with their own parents, who continue to reside there, and * * * they only recently arrived in this country to live with their aunt while they attended school here. The respondent's association with her nieces is therefore not so emotionally intense nor of such longstanding duration so as to supplant the children's relation with their parents. The BIA found the facts in Tovar distinguishable, since in Tovar the grandson of the alien had lived with the alien since infancy and viewed the alien as his biological parent (ibid.). /2/ Accordingly, the BIA found respondent's contentions without merit and dismissed the appeal (App., infra, 14a). 5. Respondent then appealed to the court of appeals, again relying on Tovar. The court agreed with the immigration judge and the BIA that respondent had failed to demonstrate extreme hardship to herself or her son (App., infra, 3a). Nonetheless, the court agreed with respondent that Tovar was applicable, and therefore reversed the decision of the BIA (App., infra, 3a-5a). The court reasoned (App., infra, 5a (citations omitted)) that It is important that (respondent) at least be given an opportunity to present evidence of hardship to her nieces, since a court must determine hardship based upon a consideration of the deportation's combined effect on the entire protected class (those persons named in Section 1254(a)(1)). The Court indicated (App., infra, 4a-5a) that, notwithstanding this Court's intervening decisions in INS v. Jong Ha Wang, 450 U.S. 139 (1981), and INS v. Phinpathya, 464 U.S. 183 (1984), the Tovar decision, rendered in 1980, was "still good law." It concluded that "the immigration judge erred by refusing even to hear testimony that could have shown that, despite the short time (respondent) and her nieces had lived together, a relationship of mother and child did exist" (App., infra, 4a). /3/ REASONS FOR GRANTING THE PETITION This case presents an important and recurring question of immigration law concerning the statutory requirements for the exceptional remedy of suspension of deportation under Section 244(a)(1) of the Act, 8 U.S.C. 1254(a)(1). That Section provides a discretionary remedy whereby an alien can obtain suspension of deportation if he can demonstrate extreme hardship to himself or to "his spouse, parent, or child." The court of appeals held that, in applying Section 244(a)(1), the immigration authorities erred in not considering hardship to the alien's nieces. In so holding, the court completely ignored the Act's detailed definition of "child" (8 U.S.C. 1101(b)(1)), a definition that does not include nieces. There is a direct conflict in the circuits on this issue of whether INS must consider hardship to individuals not identified in the statute in determining whether an alien is entitled to suspension of deportation. The First Circuit has taken the same approach as the Third Circuit on this issue. See Antoine-Dorcelli v. INS, 703 F.2d 19 (1st Cir. 1983). The Fifth and Ninth Circuits, by contrast, have ruled that the courts are not free to expand the statutory category of "child" in determining eligibility for suspension of deportation. See Zamora-Garcia v. United States Dep't of Justice INS, 737 F.2d 488 (5th Cir. 1984); Contreras-Buenfil v. INS, 712 F.2d 401 (9th Cir. 1983). Under the approach of the First and Third Circuits, so long as an alien alleges a de facto parent-child relationship with someone, evidence on the scope of that relationship and on the hardship to that person must be considered. The result is to impose a substantial additional administrative burden in suspension hearings by requiring that immigration authorities admit and consider evidence on those issues. Moreover, the court of appeals' decision cannot be reconciled with this Court's decisions in INS v. Phinpathya, supra, INS v. Jong Ha Wang, supra, and Fiallo v. Bell, 430 U.S. 787 (1977). Phinpathya and Jong Ha Wang make clear that the suspension of deportation remedy is a narrow one and cannot be judicially expanded. Fiallo makes clear that the courts cannot ignore Congress's definition of "child" under the Act and substitute their own broader definitions. For these reasons, review by this Court is plainly warranted. 1. Section 244(a)(1) of the Act, 8 U.S.C. 1254(a)(1), provides that an alien applying for suspension of deportation must demonstrate, inter alia, "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 * * * ." The terms "spouse," "parent," and "child" are explicitly defined in the Act. See 8 U.S.C. 1101(a)(35) (defining spouse), 8 U.S.C. 1101(b)(1) (defining child for purposes of subchapters I and II); 8 U.S.C. 1101(b)(2) (defining parent for purposes of subchapters I and II); 8 U.S.C. 1101(c)(1) (defining child for purposes of subchapter III); 8 U.S.C. 1101(c)(2) (defining parent for purposes of subchapter III). Since Section 244(a)(1) is part of subchapter II, the definition of child contained in 8 U.S.C. 1101(b)(1) is the applicable one. That provision defines a child as an unmarried person under twenty one years of age who is (1) a legitimate child; (2) a stepchild, whether or not born out of wedlock, so long as the marriage creating that step relationship occurred before the child reached 18 years of age; (3) a child legitimated by the age of 18, provided certain specified requirements are met; (4) an illegitimate child, but only in relation to his or her natural mother; (5) a child adopted while under age 16, if the child has been in the legal custody of, or resided with, the adopting parent(s) for at least two years; and (6) an orphan for whom an immediate-relative petition had been filed before the orphan reached the age of 16, provided that certain specified requirements are met. 8 U.S.C. 1101(b)(1). It is immediately apparent that a niece is not included within this comprehensive definition of an alien's "child." 2. The legislative history of the Act demonstrates that Congress carefully formulated the statutory definition of "child" to delimit the Act's coverage. /4/ Prior to the passage of the Act, copies of predecessor bills were circulated to interested government agencies, including INS, and the suggestions of those agencies were considered by Congress in drafting the Act. See Revision of Immigration, Naturalization, and Nationality Laws: Joint Hearings Before the Subcomm. of the Comm. on the Judiciary, 82d Cong., 1st Sess. 2-3 (1951). The INS Office of General Counsel provided analyses of two bills -- S. 3455, 81st Cong., 2d Sess. 1950) (introduced in the 81st Congress) and S. 716, 82d Cong., 1st Sess. (1951) introduced in the 82d Congress). See Analysis of S. 3455 -- 81st Cong., prepared by the General Counsel, Immigration and Naturalization Service (1950) (hereinafter cited as S. 3455 Analysis); Analysis of S. 716 -- 82d Cong., prepared by the General Counsel, Immigration and Naturalization Service (1951) (hereinafter cited as S. 716 Analysis); see generally Costello v. INS, 376 U.S. 120, 126 n.9 (1964) (citing both INS analyses). In its analysis of S. 3455, INS recognized that the suspension of deportation provision of the bill "(did) not specify the person or persons to whom * * * hardship would be caused if deportation of the alien was ordered" (S. 3455 Analysis 244-5). When S. 716 was drafted to provide that the hardship inquiry should focus on the "immediate family," INS expressed concern that those words, which were not defined in the bill, were "obscure, uncertain and difficult, if not impossible, to administer" (S. 716 Analysis 244-2). It pointed out that such words "might conceivably be claimed to include any relative of the alien, by blood or marriage, who might be living with him in his household" (id. at 244-3 (emphasis in original)). INS therefore "strongly recommend(ed) that Congress either indicate clearly and specifically the nature of the hardship and the particular relatives who are intended to be described, or that there be removed completely from (that) paragraph any references to such matters" (ibid.). The version finally adopted by Congress dealt with the issue raised by INS by referring explicitly to the alien's "spouse," "parent," and "child" (8 U.S.C. 1254(a)(1)) as the persons to be considered, along with the alien, for hardship purposes. Moreover, Congress provided detailed definitions of those three terms (8 U.S.C. 1101(a)(35), (b)(1) and (b)(2) respectively). In addition, Congress made clear, with respect to its definition of "child," that uniform application of that term was intended. As the legislative history of the Act indicated: "Section 101(b)(1) provides the definition of 'child' which contains uniform considerations to be applied in determining whether that status exists in the application of the provisions of titles I and II of the bill." H.R. Rep. 1365, 82d Cong., 2d Sess. 33 (1952) (emphasis added); see also S. Rep. 1137, 82d Cong., 2d Sess. 5 (1952). Since the enactment of the Act in 1952, Congress has amended the definition of "child" on several occasions. /5/ In 1957, Congress amended the definition to provide that for immigration purposes, an illegitimate child should be considered a child of its natural mother. Act of Sept. 11, 1957, Pub. L. No. 85-316, Section 2, 71 Stat. 639. That amendment also expanded the definition of child to include a child adopted while under the age of 14, if the child has been in the legal custody of, or resided with, the adopting parent for at least two years (ibid.). In 1961, Congress amended the definition by including as a "child" an orphan who meets the various requirements. Act of Sept. 26, 1961, Pub. L. No. 87-301, Sections 1-4, 75 Stat. 650-651. The language of the orphan provision was modified in 1965. Act of Oct. 3, 1965, Pub. L. No. 89-236, Section 8(c), 79 Stat. 917. In 1981, the definition of child was modified to raise the maximum qualifying age for adoptions from 14 to 16. Immigration and Nationality Act Amendments of 1981, Pub. L. No. 97-116, Section 2(b), 95 Stat. 1161. These changes demonstrate that Congress carefully drafted and modified the meaning of "child" to respond to particular issues or problems. At no point did Congress abandon its objective of providing a precise definition that would be uniformly applied; to the contrary, each amendment underscored that Congress, not the courts, was to determine the meaning of child under the Act. /6/ In 1977, this Court had occasion to analyze in detail the definition of "child" in 8 U.S.C. 1101(b). Fiallo v. Bell, supra. In Fiallo, three sets of unwed natural fathers and their illegitimate children, all seeking special immigration preference status, challenged the constitutionality of the Act's definition of child. Under that definition (8 U.S.C. 1101(b)(1)(D)), an illegitimate child is considered the "child" of his natural mother but not of his natural father. The Court, in rejecting that challenge, explicitly recognized that the courts were not free to disregard Congress's definition of "child" in favor of their own. As the Court stated (430 U.S. at 797-798 (citation omitted; emphasis added)): (Defining an illegitimate child in relation to his or her natural mother but not his natural father) is just one of many (distinctions) drawn by Congress pursuant to its determination to provide some -- but not all -- families with relief from various immigration restrictions that would otherwise hinder reunification of the family in this country. In addition to the distinction at issue here, Congress has decided that children, whether legitimate or not, cannot qualify for preferential status if they are married or are over 21 years of age. 8 U.S.C. Section 1101(b)(1). Legitimated children are ineligible for preferential status unless their legitimation occurred prior to their 18th birthday and at a time when they were in the legal custody of the legitimating parent or parents. Section 1101(b)(1)(C). Adopted children are not entitled to preferential status unless they were adopted before the age of 14 and have thereafter lived in the custody of their adopting or adopted parents for at least two years, Section 1101(b)(1)(E). And stepchildren cannot qualify unless they were 18 at the time of the marriage creating the stepchild relationship. Section 1101(b)(1)(B). With respect to each of these legislative policy distinctions, it could be argued that the line should have been drawn at a different point and that the statutory definitions deny preferential status to parents and children who share strong family ties. But it is clear from our cases * * * that these are policy questions entrusted exclusively to the political branches of our Government, and we have no judicial authority to substitute our political judgment for that of Congress. The reasoning in Fiallo clearly applies in this case; the meaning of the term "child" for purposes of suspension of deportation is for Congress, not the courts, to define. 3. The carefully drafted definition of "child" in the Act reflects one aspect of the overall congressional purpose to provide relief from deportation only in the most exceptional cases. See S. Rep. 1137, 82d Cong., 2d Sess. 25 (1952); H.R. Rep. 1365, 82d Cong., 2d Sess. 62-63 (1952). This Court has recently made clear in two cases that the courts may not expand the narrow remedy of suspension of deportation established by Congress. In INS v. Jong Ha Wang, supra, the Court summarily reversed a lower court decision that had adopted an expansive definition of the term "extreme hardship" for purposes of Section 244(a)(1) of the Act, 8 U.S.C. 1254(a)(1). The Court indicated that the immigration authorities "have the authority to construe 'extreme hardship' narrowly should they deem it wise to do so. Such a narrow interpretation is consistent with the 'extreme hardship' language, which itself indicates the exceptional nature of the suspension remedy." 450 U.S. at 145. Similarly, in INS v. Phinpathya, supra, the Court, in interpreting the seven year continuous physical presence requirement of Section 244(a)(1), 8 U.S.C. 1254(a)(1), rejected arguments that a liberal definition should apply. The Court analyzed the legislative history of Section 244(a)(1) at length (464 U.S. at 189-192), and concluded as follows (id. at 195-196 (emphasis added)): It is * * * clear that Congress intended strict threshold criteria to be met before the Attorney General could exercise his discretion to suspend deportation proceedings. Congress drafted Section 244(a)(1)'s provisions specifically to restrict the opportunity for discretionary administrative action. Respondent's suggestion that we construe the Act to broaden the Attorney General's discretion is fundamentally inconsistent with this intent. * * * Congress designs the immigration laws, and it is up to Congress to temper the laws' rigidity if it so desires. 4. Despite this Court's decisions in Fiallo, Jong Ha Wang and Phinpathya, the court of appeals in this case reaffirmed its expansive definition of "child" for purposes of reviewing INS suspension of deportation decisions. The court ruled that the immigration judge and the BIA had erred in not considering whether respondent's nieces were her "children" (App., infra, 4a). It reached that decision, moreover, without even discussing the statutory definition of child (8 U.S.C. 1101(b)). The court specifically stated (App., infra, 5a) that Tovar remained "good law" despite this Court's intervening decisions in Jong Ha Wang and Phinpathya. Citing no authority, the court simply concluded that it had "greater discretion" in applying the "extreme hardship" requirement than it did in applying the continuous physical presence requirement involved in Phinpathya (ibid.). This reasoning is particularly unpersuasive since Jong Ha Wang, like this case, involved the "extreme hardship" issue. We submit that the court of appeals, both in the instant case and in Tovar, /7/ improperly substituted its own more inclusive definition of "child" for that explicitly provided by Congress. The Third Circuit is not the only circuit that has improperly expanded the definition of child. The First Circuit, in Antoine-Dorcelli v. INS, supra, relied on Tovar in holding that the BIA erred in not considering, for purposes of suspension of deportation, an alien's relationship with various non-relatives with whom she had been living. The court found Tovar persuasive and ruled that Tovar also applied to non-relatives. 703 F.2d at 22. Indeed, the court even left open the possibility that the alien could claim a parent-child relationship with children whose own parents lived at the premises as well. Id. at 20, 22 n.3. /8/ Other circuits, by contrast, have ruled that Tovar is contrary to this Court's pronouncements in Jong Ha Wang and Phinpathya. Thus, in Contreras-Buenfil, the Ninth Circuit rejected the alien's assertion that, under Tovar, the BIA had erred in failing to consider the hardship to his girlfriend's son. The Ninth Circuit reasoned that (712 F.2d at 403): Tovar preceded the Supreme Court's Jong Ha Wang decision, in which the Court stated that the court of appeals may not substitute its definition of "hardship" for that of the Board. In light of Jong Ha Wang, it is unlikely that the Court would require the Board to consider hardship to a person not identified in the statute. Although the Board might have considered hardship to (the girlfriend's son), its refusal to go beyond the statutory definition of "child" is not an abuse of discretion. Similarly, the Fifth Circuit, on rehearing, vacated the portion of a prior opinion that had remanded the case for a Tovar analysis. Zamora-Garcia v. United States Dep't of Justice INS, 737 F.2d 488, rev'g 724 F.2d 974 (5th Cir. 1984). The case raised the issue of whether an alien housekeeper could assert hardship to her employer's children. The court reasoned that this Court's intervening decision in Phinpathya required strict adherence to the statutory definition of "child." In the court's words (737 F.2d at 493-494 (citation omitted)): We concede that the plain language of the statute provides only for the consideration of 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 residency." On rehearing, we think our earlier liberal interpretation of the statute * * * is precluded by the Supreme Court's (Phinpathya) decision * * * . This Court should resolve the conflict among the circuits and hold that the courts are restricted to compliance with the statutory terms when reviewing suspension of deportation decisions by INS. 5. The court of appeals' decision, although unpublished, will have a substantial adverse impact on the administration of the immigration laws. That decision makes clear that Tovar, a published decision, remains good law in the Third Circuit. As a result of Tovar and its progeny, including this case, immigration authorities must consider hardship to individuals outside the narrow categories specified by Congress. They must also consider the difficult psychological issue of whether individuals have formed de facto parent-child relationships. Moreover, these decisions have impaired the efforts of the BIA and immigration judges to apply uniformly and evenhandedly the simple concept of "child," which Congress defined in great detail. In addition, the court's liberal construction of "child" frustrates Congress's clear intent to make suspension of deportation a remedy available only in narrowly defined circumstances. In short, Tovar and its progeny have led to the very type of open-ended litigation that Congress specifically sought to avoid when it enacted, to accompany the suspension of deportation provision, an elaborately detailed definition of the term "child." /9/ Review by this Court is therefore needed. CONCLUSION The petition for a writ of certiorari should be granted. In light of the clarity of the statutory definition and the governing legal principles already announced in this Court's decisions, the Court may wish to consider summary reversal. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General ROBERT H. KLONOFF Assistant to the Solicitor General EILEEN A. CARTY ALISON R. DRUCKER Attorneys JULY 1986 /1/ In Tovar, the Third Circuit held that the hardship to an alien's grandson should, under the facts of that case, be considered by the immigration judge at the deportation proceeding (612 F.2d at 797-798). /2/ The BIA further ruled that, even if it assumed arguendo that the hardship to the nieces should be considered, extreme hardship had not been shown because the nieces' closest ties were with their own parents. Separation from their aunt would not be particularly severe and, in any event, if the nieces returned to Dominica as a result of their aunt's departure, they would be reunited with their own parents. App., infra, 13a-14a. In addition, the BIA ruled that respondent had not demonstrated extreme hardship to herself, merely because of the possibility of a reduced standard of living in Dominica, particularly since her return to that country would reunite her with her family (App., infra, 11a-12a). The BIA also ruled that respondent had not shown extreme hardship to her son, simply because of lower living standards, reduced educational opportunity, and separation from family and friends in the United States if he accompanied respondent to Dominica (App., infra, 12a-13a). /3/ The court also indicated that the BIA had not "address(ed) meaningfully" all factors bearing on the hardship determination because it had not focused on hardship to the nieces (App., infra, 4a). Judge Garth, in dissent, took issue with the court on that point, reasoning that the BIA had adequately considered, inter alia, the relationship between respondent and her nieces and any hardship to respondent or the nieces from deportation (App., infra, 5a, n.1). Judge Garth did not challenge the majority's view that Tovar was still good law; he simply ruled that the BIA had conducted a sufficient factual inquiry and that a remand was, therefore, unnecessary. Cf. INS v. Bagamasbad, 429 U.S. 24 (1976) (where immigration judge denied application for adjustment of status to that of permanent resident alien based on discretionary grounds, no reason to remand for advisory opinion on whether statutory eligibility requirements were met). /4/ Indeed, Congress specifically emphasized the basic importance of the definitional section of the Act (8 U.S.C. 1101). As the House report explained (H.R. Rep. 1365, 82d Cong., 2d Sess. 31 (1952)): (S)ince many of those definitions are determinative of the application of other provisions of the bill, that section must be considered as one of the most important segments of the proposed legislation. The legislation history further stated that while some definitions were "self-explanatory and require(d) no further elaboration" (ibid.), the "more significant ones (were) discussed in some detail" (ibid.). One of the definitions that received elaboration was the definition of "child" (id. at 33). See also S. Rep. 1137, 82d Cong., 2d Sess. 3, 5 (1952). /5/ The original definition, enacted in 1952, provided that a child was an unmarried legitimate or legitimated child or stepchild under the age of twenty one. See Fiallo v. Bell, 430 U.S. 787, 797 (1977) (discussing original definition of "child"). /6/ Congress's deliberate effort to define the term "child" precisely for purposes of subchapters I and II of the Act is further underscored by the fact that it provided a different, and more expansive, definition of child for purposes of subchapter III of the Act (the nationality and naturalization provisions). See 8 U.S.C. 1101(c)(1). Moreover, the importance of the definition of "child" contained in 8 U.S.C. 1101(b)(1) is underscored in 8 U.S.C. 1101(b)(2), which provides that "(t)he terms 'parent', 'father', or 'mother' means a parent, father or mother only where the relationship exists by reason of any of the circumstances set forth in (the definition of child)" (emphasis added). /7/ In Tovar, the court held that a grandchild could be considered a child of his grandmother for purposes of 8 U.S.C. 1254(a)(1) because there was a de facto parent-child relationship between them. The court cited the statutory definition of child (see 612 F.2d at 797 n.3), but then proceeded to ignore it. /8/ The Second Circuit has also indicated, in a decision rendered prior to Jong Ha Wang and Phinpathya, that Tovar, on its facts, was probably correctly decided. Chiaramonte v. INS, 626 F.2d 1093 (1980). The alien had obtained extreme hardship consideration as to his married, self-supporting son, but the Second Circuit refused to extend Tovar to include the 56 year old alien's relationship with his father, reasoning that since the alien was not a "child" as defined in the Act, his father could not be deemed a "parent" (626 F.2d at 1100). /9/ See generally INS v. Rios-Pineda, No. 83-2032 (May 13, 1985), slip op. 6 ("One illegally present in the United States who wishes to remain * * * has a substantial incentive to prolong litigation in order to delay physical deportation for as long as possible."); INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984) (emphasis added) (noting that "a deportation hearing is intended to provide a streamlined determination of eligibility to remain in this country"). The extent of litigation produced by Tovar is evident from the number of published court of appeals decisions that have addressed, in varying degrees, the issues raised in that case. See Dill v. INS, 773 F.2d 25, 28, 31 (3d Cir. 1985); Zamora-Garcia v. United States Dep't of Justice INS, supra; Contreras-Buenfil v. INS, supra; Amezquita-Soto v. INS, 708 F.2d 898, 903 (3d Cir. 1983); Antoine-Dorcelli v. INS, supra; Chiaramonte v. INS, 626 F.2d 1093, 1100 (2d Cir. 1980). APPENDIX