KAO AND LIN

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                       In re Bing Chih KAO, Respondent
                        In re Mei Tsui LIN, Respondent
                            File A70 465 645 - Los Angeles
                                   File A75 474 902
                                   Decided May 4, 2001
                            U.S. Department of Justice
                      Executive Office for Immigration Review
                          Board of Immigration Appeals

(1) In evaluating an application for suspension of deportation, the hardship to the applicant’s
   United States citizen child must be given careful consideration, as the applicant’s eligibility
   for relief may be established by demonstrating that his or her deportation would result in
   extreme hardship to the child.

(2) The standard for determining “extreme hardship” in applications for suspension of
    deportation is also applied in adjudicating petitions for immigrant status under section
    204(a)(1) of the Immigration and Nationality Act, 

8 U.S.C. § 1154

(a)(1) (1994 & Supp.
    V 1999), as amended, and waivers of inadmissibility under section 212(i) of the Act,
    

8 U.S.C. § 1182

(i) (Supp. V 1999).
(3) The respondents met the extreme hardship requirement for suspension of deportation
   where their oldest daughter, who is a 15-year-old United States citizen, has spent her
   entire life in the United States, has been completely integrated into the American lifestyle,
   and is not sufficiently fluent in the Chinese language to make an adequate transition to
   daily life in her parents’ native country of Taiwan. Matter of Pilch, 

21 I&N Dec. 627

   (BIA 1996), distinguished.
FOR RESPONDENT: William Kiang, Esquire, Alhambra, California

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Elsa I. Martinez,
Assistant District Counsel
BEFORE: Board En Banc: DUNNE, Vice Chairman; SCHMIDT, HOLMES,
        HURWITZ, VILLAGELIU, GUENDELSBERGER, MATHON,
        ROSENBERG, MOSCATO, MILLER, BRENNAN, ESPENOZA, and
        OSUNA, Board Members. Concurring Opinion: SCIALABBA, Acting
        Chairman; joined by GRANT, Board Member. Dissenting Opinion: JONES,
        Board Member, joined by HEILMAN, FILPPU, and COLE, Board Members.1




1
    Board Member Kevin A. Ohlson did not participate in the decision in this case.

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MILLER, Board Member:

   In a decision dated January 12, 1998, an Immigration Judge found the
respondents deportable as charged, denied their applications for suspension of
deportation under former section 244(a) of the Immigration and Nationality Act,

8 U.S.C. § 1254

(a) (1994) (repealed 1996), and granted them voluntary
departure. The respondents have appealed. The Immigration and Naturalization
Service has filed an opposition to the respondents’ appeal. The appeal will be
sustained. The request for oral argument is denied. See 

8 C.F.R. § 3.1

(e)
(2001).

                        I. FACTUAL BACKGROUND
   The respondents are a 45-year-old male and a 43-year-old female, husband
and wife, who are natives and citizens of Taiwan. The respondents were admitted
to the United States on June 3, 1984, as nonimmigrant students with
authorization to remain in this country until June 10, 1985. On March 10, 1997,
the Service personally served both respondents with an Order to Show Cause and
Notice of Hearing (Form I-221), alleging that they were subject to deportation
for having remained in the United States without authorization.
   At their hearing before the Immigration Judge, the respondents applied for
suspension of deportation and both testified in support of their application for
relief. The respondents had five children and were expecting their sixth child at
the time of the hearing.2 All of their children were born in the United States:
the oldest daughter, Claire, is currently 15 years old; their daughter, Diana, is
12 years old; their son, Max, is 10 years old; their daughter, Eileen, is 8 years
old; and their son, Nicholas, is 6 years old. All of the children are doing well in
school.
                      A. Female Respondent’s Testimony
   The female respondent testified that although she speaks to her children at
home in both English and Chinese, the children reply only in English. The
respondent also stated that only the three oldest children had been taking
Chinese language courses, which last for 90 minutes on Sundays. Claire had
been in classes for 4 years, Diana for 3 years, and Max for 2 years. The children
do not attend these classes regularly because if there is a church function, the
children do not go to class. The respondent stated that her oldest daughter,
Claire, knew less than 100 words in Chinese. If she were in school in China, she
would have the Chinese language skills of a first grader.

2
   The record has not been updated to reflect whether the respondents’ sixth child was
actually born. We will therefore consider only the five children that the respondents had at
the time of the hearing in our evaluation of their application.

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   The respondent stated that if she were deported to Taiwan, her main concern
would be for the children because they do not speak Chinese very well. The
respondent worries that the children, especially the oldest, would not be able to
follow the Taiwan school system. There is only one English school in Taiwan,
but there is a long waiting list to get in and the yearly fee of $15,000 is too
expensive for them.
   The respondents own their house in Texas, which they bought in 1992.
However, because it has not appreciated in value, they would not make any
money from the sale of this house. The female respondent stated that if they
were to return to Taiwan, they would have to pay about $800 for a one-bedroom
apartment, whereas in the United States their house has four bedrooms. The
female respondent was an interpreter in Taiwan before leaving that country, but
she has been a housewife in the United States ever since the birth of their first
child. The respondents have never been on welfare and they paid for the delivery
of all of their children.
   The female respondent has been involved in her local church, the Dallas
Chinese Fellowship Church, since her arrival in 1984. She was also baptized in
her church in 1985. Through the years, the female respondent has participated
in the children’s ministry, preparing teenagers to serve God and teaching the
Bible at the Sunday school. She has also been active in other church events,
such as volunteering at Thanksgiving to cook for the homeless.
   The female respondent estimates that she has 20 good friends, and she feels
that it would be a hardship on her if she were to lose contact with her circle of
friends. She stated that it would be difficult for her to participate in fellowship
groups in Taiwan because most people in Taiwan are Buddhist.
   The female respondent graduated from college in Taiwan with a business
administration degree. Both of her parents continue to live in Taiwan, in her
older brother’s apartment. She has two brothers and two sisters in Taiwan.
Although two of her siblings have homes in Taiwan, they both continue to pay
a mortgage.
   The female respondent stated that if she were to return to Taiwan, she could
not get a job because she has to take care of her children at home. She would
not be able to live with her relatives, who already have small accommodations
for themselves. Instead, the respondents and their children would likely have to
live in a one-bedroom apartment.

                     B. Male Respondent’s Testimony
   The male respondent testified that he first arrived in the United States on
May 13, 1982, on a student visa, to pursue a master’s degree at the University
of Dallas, in Texas. In 1984, he returned to Taiwan to marry his wife and then
returned with her to the United States. The respondent worked consistently as
a deliveryman from 1985 until 1990. In September 1990, the respondent

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purchased a video store with the proceeds that his parents received from the sale
of their farmland in Taiwan. The respondent sold the store after 13 months and
used that money to buy his home. In October 1991, the male respondent went
back to work as a deliveryman. He works 7 days a week and attends church on
Sundays.
   The male respondent has a salary of $19,000 per year, and he pays $900 per
month toward the mortgage on the house. The respondents own two cars: one
he uses for his deliveries, and the other she uses to drive the children. The
respondents have insurance on their cars, and they have never received any
traffic tickets.
   The male respondent testified that he graduated from college with a degree
in business administration. He stated that he wrote about 13 letters to Taiwan
businesses inquiring about employment prospects if he had to return, but he did
not receive any replies. His family has told him that he would not be able to get
a good job. The respondent estimates that he would make $800 per month
working in Taiwan. He claims the cost of living is higher in Taiwan than it is in
the United States, and that he would be at a disadvantage because companies
prefer to hire younger workers.
   The male respondent’s parents live in Taiwan in a house that belongs to his
brother. He has three sisters in Taiwan, but there is no evidence that any of them
owns a house.

               II. IMMIGRATION JUDGE’S DECISION
   The Immigration Judge found that the respondents met the statutory
requirements of 7 years of continuous physical presence and good moral
character. However, the Immigration Judge denied the respondents’ application
for suspension of deportation, finding that they failed to establish that their
deportation would result in extreme hardship to themselves or to their United
States citizen children. The Immigration Judge granted the respondents relief
in the form of voluntary departure. The respondents have appealed from this
decision, arguing that their deportation would result in extreme hardship to
themselves and their United States citizen children.

  III. RESPONDENTS’ APPLICATION FOR SUSPENSION OF
                    DEPORTATION
   The only issue before us is whether the respondents have established that
their deportation would result in extreme hardship to themselves or their United
States citizen children, such that they should be granted suspension of
deportation under former section 244(a) of the Act. In making a determination
of extreme hardship, we consider the age of the respondents, both at entry and
at the time of their application for relief; their family ties in the United States

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and abroad; their length of residence in the United States over the minimum
requirement; their own health, as well as that of their United States citizen
children; political and economic conditions in Taiwan; the financial impact of
departure from the United States; the possibility of other means of adjusting
their status in the United States; their involvement and position in their local
community; and their immigration history. Matter of Anderson, 

16 I&N Dec. 596

 (BIA 1978); 

8 C.F.R. § 240.58

(b) (2001).3
                          A. Hardship to Respondents
   We note that, except for a brief trip to Taiwan, the male respondent has lived
in the United States for approximately 19 years and the female respondent for
almost 17 years, well over the 7-year requirement for suspension of
deportation. Furthermore, during this time, the respondents have been very
involved in their community and have obeyed the laws of the United States.4 In
addition, there is evidence that they have paid their taxes, and they have raised
five citizen children in this country. Although the male respondent would be
able to find a job in Taiwan doing deliveries, which is somewhat similar to his
present job in the United States, he testified that his salary would decrease
considerably and his expenses for housing and education for his children would
dramatically increase. The respondents do not have any other means of adjusting
their status unless they wait 6 years for their oldest daughter to turn 21 and file
a visa petition on their behalf.
   The respondents were adults when they traveled to the United States on
student visas and have therefore lived most of their lives in Taiwan. They are
relatively young and in good health, and they should not experience significant
difficulties in returning to their homeland. The respondents should not
encounter any major problems in relocating as a result of the political and
economic conditions in Taiwan.
   Regrettably, the respondents’ attorney failed to present witness testimony and
documentary evidence to corroborate the respondents’ involvement in their
community and the hardship they would suffer if forced to separate from their
friends. Nevertheless, there is no evidence in the record that contradicts the

3
  The standard for “extreme hardship” that we apply in the present case is the same as that
applied in cases dealing with petitions for immigrant status under section 204(a)(1) of the
Act, 

8 U.S.C. § 1154

(a)(1) (1994 & Supp. V 1999), as amended by section 40701 of the
Violence Against Women Act of 1994, 

Pub. L. No. 103-322, 108

 Stat. 1941 (codified at

42 U.S.C. § 13981

), as well as in cases involving waivers of inadmissibility under section
212(i) of the Act, 

8 U.S.C. § 1182

(i) (Supp. V 1999).
4
  Aside from a minor incident involving the male respondent and a copyright violation of
videotapes when he owned the video store, the respondents have never had any criminal
problems, nor have they been arrested. The Immigration Judge found that the respondents
had established good moral character.

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respondents’ testimony that they are committed to their community, that they
own their own home, and that their family would experience significant
difficulties in Taiwan. We do not need to decide, however, whether these
respondents have established sufficient hardship to themselves to warrant a grant
of suspension of deportation, without consideration of the hardship to their
United States citizen children. See Matter of Anderson, supra; 

8 C.F.R. § 240.58

(b).
      B. Hardship to Respondents’ United States Citizen Children
    The respondents can establish their eligibility for suspension of deportation
if they demonstrate that their deportation would result in extreme hardship to
their United States citizen children. Extreme hardship to an applicant’s children
is an important factor that must receive close attention in evaluating a
suspension claim. Casem v. INS, 

8 F.3d 700

 (9th Cir. 1993). It is clear from
the record that the respondents’ concern for their children’s welfare and the
hardship they would endure is greater than their concern for themselves. The
children range in age from 6 to 15 years old and the female respondent’s
principal concern is for their education, because the children are not fluent in
Chinese. Although she speaks to the children both in English and in Chinese,
they respond to her only in English. The three older children have been enrolled
in Chinese language classes for several years, but these classes are not regular
and are held only on Sundays, in sessions lasting 1½ hours per week.
    We find that the Immigration Judge erred in speculating that the children
would become fluent in Chinese within a “very short period of time.” There is
no evidence that they have even a basic command of the Chinese language. As
mentioned, it is unfortunate that the respondents’ children did not testify at the
hearing, but we find nothing in the record to indicate that their language
capabilities, especially those of the oldest daughter, Claire, are sufficient for an
adequate transition to daily life in Taiwan. These children have lived their entire
lives in the United States and are completely integrated into their American
lifestyles. Their needs for housing, food, clothing, education, and community
support have been adequately met. We are satisfied that to uproot the oldest
daughter, Claire, at this stage in her education and her social development and
to require her to survive in a Chinese-only environment would be a significant
disruption that would constitute extreme hardship.5 Consequently, it is
unnecessary to determine whether the other citizen children would also suffer
extreme hardship.
5
  Contrary to the characterization of our decision presented in the dissenting opinion of
Board Member Jones, we assert nothing about the quality of the educational system in
Taiwan. What we do find is that the children would be disadvantaged in Taiwan because
they do not speak, read, or understand the language used in the only educational system that
would be available to them.

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   The facts in the present case are distinguishable from those set forth in
Matter of Pilch, 

21 I&N Dec. 627

 (BIA 1996). In Pilch, the aliens were a
husband and wife, natives and citizens of Poland, who had been living in the
United States for 11 years. They had three United States citizen children, all of
whom were under the age of 6. The aliens admitted that their children spoke
Polish and that they were learning English in school. Their oldest son was living
in Poland with his grandmother. We determined that the respondents had failed
to establish that their deportation would result in extreme hardship to
themselves or their United States citizen children. 

Id.

   In contrast, the respondents in this case have been living in the United States
for 19 years and 17 years, respectively, a significantly longer period of physical
presence than either of the aliens in Matter of Pilch, supra. The respondents
also had five citizen children at the time of their hearing before the Immigration
Judge. We note in particular that the oldest child is now 15 years old and the
youngest is 6 years old. All five children have spent their formative years in the
United States and have succeeded in their studies in the American school
system. Having lived in the United States all of their lives, these children have
clearly been integrated into the American lifestyle. The children’s primary
language is English and they are not sufficiently fluent in the Chinese language
to succeed in Taiwan. We conclude that the oldest daughter, Claire, who is of
high school age, would suffer extreme hardship if her parents were deported
from the United States to Taiwan. Having reached this conclusion, we do not
find it necessary to address whether the respondents’ deportation would
constitute extreme hardship to the younger children, and we save that inquiry for
another day.

                            IV. CONCLUSION
   Having found that the respondents’ oldest child would suffer extreme
hardship if the respondents were to return to Taiwan, we conclude that the
respondents have met the statutory requirement of establishing that their
deportation from the United States would result in extreme hardship to
themselves or their United States citizen children. See Matter of Pilch, supra;
Matter of Anderson, supra.
   We discern no reason to disturb the Immigration Judge’s conclusion that the
respondents have established the requisite statutory presence and good moral
character in the United States. In addition, we find nothing in the record to
indicate that the respondents are undeserving of this form of relief in the
exercise of discretion. Inasmuch as the respondents have met all of the
requirements for suspension of deportation, we will grant their application under
section 244(a) of the Act.
   Accordingly, the respondents’ appeal will be sustained.
   ORDER: The appeal is sustained.

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  FURTHER ORDER: The respondents’ application for suspension of
deportation is granted and deportation is suspended.

CONCURRING OPINION: Lori L. Scialabba, Acting Chairman, in
which Edward R. Grant, Board Member, joined
   I respectfully concur. I agree with the result in this matter, and with nearly
all of the majority’s analysis. I write separately only to clarify that our
precedent decision in this matter does not shift the burden of proof to the
Immigration and Naturalization Service on the suspension of deportation claim,
as the majority opinion at certain points appears to suggest.
   For example, the majority opinion states that “there is no evidence in the
record that contradicts the respondents’ testimony that they are committed to
their community, that they own their own home, and that their family would
experience significant difficulties in Taiwan.” Matter of Kao and Lin, 

23 I&N Dec. 45

, 49-50 (BIA 2001). This observation is admittedly unnecessary to our
result in this matter, as the majority’s opinion quickly points out. The
observation also incorrectly suggests that in the absence of rebuttal, the
respondents have established these points in their favor. But the burden of proof
to show extreme hardship is upon the respondents. If they produce no evidence
on these points, no rebuttal by the Service is necessary.
   The majority makes a similarly troubling observation later in its opinion,
concluding that “[t]here is no evidence that [the children] have even a basic
command of the Chinese language,” or that their language capabilities “are
sufficient for an adequate transition to daily life in Taiwan.” 

Id. at 50

. In the
absence of any evidence in this regard, there is no basis for the majority’s
inference that the children’s command of the language is insufficient for
adequate readjustment to Taiwan, or that they would suffer hardship as a result.
To hold otherwise would shift the burden of proof to the Service. I do not
believe that this was the majority’s intention. I also agree that the evidence
supports a grant of suspension of deportation in this matter, regardless of the
language issue.

DISSENTING OPINION: Philemina McNeill Jones, Board Member, in
which Michael J. Heilman, Lauri Steven Filppu, and Patricia A. Cole,
Board Members, joined

    I respectfully dissent.
    I agree with the determination of the Immigration Judge that the respondents
failed to establish that their deportation from the United States would result in
extreme hardship to themselves or to any of their United States citizen children.
See section 244(a) of the Immigration and Nationality Act, 

8 U.S.C. § 1254

(a)

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(1994) (repealed 1996); Matter of Pilch, 

21 I&N Dec. 627

 (BIA 1996) (finding
that the respondents failed to show extreme hardship over and above the normal
economic and social disruptions involved in deportation to themselves or their
three United States citizen children); Matter of Anderson, 

16 I&N Dec. 596

(BIA 1978) (providing factors to be considered in determining extreme
hardship). The respondents are college educated and have considerable assets
to assist them with readjustment. The respondents’ children can also receive a
very good education in Taiwan, as discussed below.
    I disagree with the majority’s presumption that the respondents’ children
would be forced to return to a less than adequate education system in Taiwan.
In a December 2000 publication, the United States Department of Education
reported the findings from the Third International Mathematics and Science
Study, as compiled by the National Center for Education Statistics. This report,
entitled Pursuing Excellence: Comparisons of International Eighth-Grade
Mathematics and Science Achievement from a U.S. Perspective, 1995 and
1999, disclosed that junior high school students from the Republic of China
(Taiwan) were ranked first in science and third in mathematics under the
international study. By comparison, American students were ranked 19th in
science and 16th in mathematics. In addition, 31% of the Taiwanese students
placed among the top 10% of all participants in science, and 41% of the
Taiwanese students placed in the top 10% of all participants in mathematics.
Only 15% of American students placed in the top 10% in science, and only 9%
of American students placed in the top 10% in mathematics.1
    The three oldest children have been enrolled in regular Chinese language
classes on Sundays for several years. These classes are held in sessions lasting
1½ hours each. The children should have attained a level of fluency in their
Chinese language reading and writing abilities to allow them to adjust to the
education system in Taiwan without major problems. In addition, based on the
level of the educational system in Taiwan as reported in the international study,
there is no reason why the children’s education in general would suffer.
    Although it may be difficult for the children to grow accustomed to their
new life in Taiwan, the children are all of a relatively young age and can adapt
and succeed in the new environment with the aid of their parents and extended
families. A consideration of all the evidence in the record leads me to conclude
that the difficulty the children would experience upon moving to Taiwan is not
over and above the normal economic and social disruptions involved in
deportation and would not amount to extreme hardship. Consequently, I would

1
  These figures are taken from the Statistical Analysis Report, which is located at the online
website for the National Center for Education Statistics at
<www.nces.ed.gov/pubs2001/2001028.pdf>. Given that this study was compiled under the
auspices of the United States Department of Education, I find that it holds a significant
amount of weight and credibility.

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not find that any of the respondents’ children would suffer extreme hardship if
they were forced to move to Taiwan.
    With respect to the economic opportunities available to the respondents, the
male respondent has a continuous employment history in the United States as
a deliveryman, but the female respondent has never worked in the United States.
Both respondents have business degrees from college and understand the
English language. The male respondent testified that although he would have
difficulty finding a job in Taiwan, he would probably be able to work as a
deliveryman. The female respondent would not work because she takes care of
the children at home.
    The respondents did not provide any information on the employment
situation in Taiwan. However, the Department of State’s Country Reports on
Human Rights Practices for 2000, available in
<http://www.state.gov/g/drl/rls/hrrp/2000/eap>, indicates that “[a]s the economy
[in Taiwan] evolved, services and capital- and technology-intensive industries
have become the most important sectors. . . . Citizens generally enjoy a high
standard of living and an equitable income distribution.” The Department of
State further reports that the Council of Labor Affairs
   did not increase the minimum monthly wage, which remained at $505 (nt$15,840). While
   sufficient in less expensive areas, this wage does not assure a decent standard of living
   for a worker and family in urban areas such as Taipei. However, the average
   manufacturing wage is more than double the legal minimum wage, and the average for
   service industry employees is even higher.

Id.

 Given these statistics, I would find that the male respondent, who has
extensive experience in the service industry and has a working knowledge of
English, clearly has the potential to earn enough money to support his family if
he were removed to Taiwan.
    The record reflects that the male respondent’s parents sold their only piece
of farmland in Taiwan to help the respondents financially in the United States.
The male respondent used the $68,000 that he received from his parents to buy
a video store in 1990. The male respondent indicated that he was expected to
pay this money back to his parents. In 1991, the respondents sold the video
store and used the money to buy a house for the family. The house was worth
$150,000, and he was able to make a deposit of $50,000 to purchase the home.
    The respondents also own two cars, and they have approximately $10,000 in
cash, stocks, and bonds. The respondents’ assets can be sold and used in order
to help them begin their lives anew in Taiwan. Their knowledge of the English
language is also sufficient to be helpful in their search for employment
overseas. In addition, the respondents are university graduates and have the
support of their extended families in Taiwan.
    Both respondents belong to the Dallas Chinese Fellowship, and the female
respondent has been teaching Sunday Bible school. The female respondent

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testified that she has many good friends in the church, but there is no evidence
in the record as to the impact that would result to the church if the respondents
were deported. Based on the testimony and evidence in the record, I would find
that the respondents have failed to establish that they would suffer extreme
hardship if they were deported to Taiwan. See Matter of Pilch, supra; Matter
of Anderson, supra. Consequently, I would find that the respondents have failed
to meet the requirements for suspension of deportation under former section
244(a) of the Act.
    Accordingly, I would dismiss the appeal.




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