Margarita Montejo Yong v. Immigration and Naturalization Service , 459 F.2d 1004 ( 1972 )

459 F.2d 1004

Margarita Montejo YONG, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 71-2184.

United States Court of Appeals,
Ninth Circuit.

March 7, 1972.
Rehearing Denied June 19, 1972.

Joseph S. Hertogs, of Jackson & Hertogs, San Francisco, Cal., for petitioner.

James L. Browning, Jr., U. S. Atty., William B. Spohn, Asst. U. S. Atty., Stephen M. Suffin, Sp. Asst. U. S. Atty., Richard L. Williams, Dist. Dir., I.N.S., San Francisco, Cal., Will Wilson, Asst. Atty. Gen., Crim. Div., Washington, D. C., Joseph Surreck, Reg. Counsel, I.N.S., San Pedro, Cal., for respondent.

Before DUNIWAY, HUFSTEDLER and CHOY, Circuit Judges.

PER CURIAM:

1

Petitioner seeks review of an order of the Board of Immigration Appeals dismissing her appeal from a decision of the special inquiry officer denying her application for suspension of deportation, pursuant to 8 U.S.C. Sec. 1254.

2

In rejecting her application the Board and the special inquiry officer relied on Matter of Lee (B.I.A.1966) 11 I & N. Dec. 649. After the decisions had been rendered, this court overruled Matter of Lee in Asimakopoulos v. Immigration and Naturalization Service (9th Cir. 1971) 445 F.2d 1362.

3

The erroneous application of Matter of Lee, alone would require reversal. In addition, however, we find error in the special inquiry officer's determination that the sole basis of petitioner's hardship claim was economic. It is undisputed that deportation would separate petitioner from her husband who is lawfully within the United States as a student. Separation from one's spouse entails substantially more than economic hardship.

4

The order is reversed and the cause is remanded for further proceedings consistent with the views herein expressed.