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USCA1 Opinion
[NOT FOR PUBLICATION]
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No. 91-2236
FRANCISCO MARIA DE FREITAS NOIA,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Robert D. Watt, Jr., on brief for petitioner.
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Stuart M. Gerson, Assistant Attorney General, David J.
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Kline, Assistant Director, and William J. Howard, Attorney,
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Office of Immigration Litigation, on brief for respondent.
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August 25, 1992
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Per Curiam. Petitioner, Francisco Maria De Freitas
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Noia, seeks review of a final order of the Board of
Immigration Appeals ("BIA") reversing an immigration judge's
grant of petitioner's application for discretionary relief
from deportation under 212(c) of the Immigration and
Nationality Act ("Act"), 8 U.S.C. 1182(c). We deny the
petition.
Petitioner lawfully entered the United States from
Portugal on July 17, 1976 at the age of 17. Twenty-nine
months later he was arrested and indicted in Rhode Island for
assaulting a woman with a hatchet with intent to murder her,
robbing her, and stealing her car. He was convicted of all
three charges on a plea of nolo contendere and sentenced to
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twenty-one years incarceration followed by another twenty
years of probation. He served approximately nine years in
the Adult Correctional Institute at Cranston. In July, 1987,
he was released on parole and into the custody of the
Immigration and Naturalization Service ("INS"), which had
previously served him with an Order to Show Cause why he
should not be deported.
At his deportation hearing, petitioner conceded the
facts establishing that he was deportable under 241(a)(4)
of the Act, 8 U.S.C. 1251(a)(4), as an alien convicted of a
crime involving moral turpitude. However, he requested a
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waiver of his deportation under 212(c), 8 U.S.C.
1182(c).1 The immigration judge ("IJ") granted his
application. On appeal the BIA reversed, finding no
demonstration of the "unusual or outstanding equities" needed
to establish eligibility for a discretionary waiver under
212(c).
Petitioner asks this court to conduct a de novo review
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of the evidence, replacing our view of the facts (which he
argues should be the same as the IJ's view) for that of the
BIA. Even if we were persuaded by petitioner's view of the
facts however, the discretion to waive exclusion of an
otherwise deportable alien under the Act has been delegated
to the BIA, not to this court. Hazzard v. INS, 951 F.2d 435,
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438 (1st Cir. 1991). We review the BIA's action only to
determine if it was "arbitrary, capricious or an abuse of
discretion." McLean v. INS, 901 F.2d 204, 205 (1st Cir.
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1990).
The BIA exercises its discretion by "balanc[ing] the
adverse factors evidencing an alien's undesirability as a
permanent resident with the social and humane considerations
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1. Although 212(c) of the Act expressly applies to aliens
who are returning "to a lawful unrelinquished domicile of
seven consecutive years," it has been interpreted to permit
discretionary waiver of deportability of aliens who have not
left the country although they have met the seven year
requirement. See Joseph v. INS, 909 F.2d 605, 606 n. 1 (1st
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Cir. 1990); Lozado v. INS, 857 F.2d 10, 11, n. 1 (1st Cir.
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1988).
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presented in his behalf." Matter of Marin, 16 I. & N. Dec.
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581, 584 (B.I.A. 1978); Joseph v. INS, 909 F.2d 605 (1st Cir.
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1990) (BIA's interpretation of its statutory authority is
entitled to court's respect). Its factual findings are
conclusive if supported by "reasonable, substantial and
probative evidence on the record considered as a whole." 8
U.S.C. 1105a(4).2 On review, we will uphold the BIA's
action "unless it was made without a rational explanation,
inexplicably departed from established policies, or rested on
an impermissible basis." McLean, 901 F.2d at 205 (quoting
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Williams v. INS, 773 F.2d 8, 9 (1st Cir. 1985)).
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2. Respondent argues that this court should not review the
record to determine if it contains substantial evidence, but
should instead confine its review to the logic and language
of the BIA's opinion. The BIA exercises its discretion by
balancing various "factors," which are composed of
conclusions on certain subjects drawn from the evidence.
Respondent says that judicial review for substantial evidence
intrudes on this discretionary exercise. Since we here
uphold the BIA's decision we need not reach this argument.
We note, however, that the cases respondent cites do not
support the limited review it urges. Cordoba-Chaves v. INS,
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946 F.2d 1245, 1246 (7th Cir. 1991); Blackwood v. INS, 803
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F.2d 1165 (11th Cir. 1986); Vergara-Molina v. INS, 956 F.2d
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682 (7th Cir. 1992). These cases hold, as has this court,
that the relative weight of the various factors balanced is
committed to the BIA's discretion, and will only be reviewed
for an abuse. Joseph, 909 F.2d at 607. However, the cases
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cited also recognize that on an appropriate challenge,
judicial review must necessarily extend to the record as a
whole to ascertain if the BIA's decision is supported by
substantial evidence, Cordoba-Chaves, 946 F.2d at 1249;
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Blackwood, 803 F.2d at 1168; or properly considered all
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important factors, Vergara-Molina, 956 F.2d at 685. A fourth
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case cited by respondent, INS v. Jong Ha Wang, 450 U.S. 139
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(1981) (upholding BIA's interpretation of statutory term), is
inapposite.
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We read petitioner's arguments as challenging the BIA's
exercise of discretion on three grounds. Petitioner claims
that the BIA improperly (1) departed from established
policies when it weighed the factors involved, (2) exceeded
its authority by conducting a de novo review and substituting
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its own view of the facts for that of the IJ, and (3) based
its factual conclusions on less than "substantial" evidence.
(1) Departure from established policies
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Petitioner argues that the BIA abused its discretion by
applying to his case a standard of eligibility never before
imposed. The requirement of "unusual and outstanding
equities" to offset serious negative factors, first
articulated in Matter of Marin, 16 I. & N. Dec. 581 (B.I.A.
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1978), petitioner argues, was applicable only in cases
involving drug-related crimes when his hearing was held in
July, 1987. We disagree.
Although Marin involved an alien who had been convicted
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of drug-related crimes, the BIA's opinion applied to all
212(c) waiver cases. The opinion clearly warned that a
proportionately greater showing of equities was required to
balance out more egregious crimes. Marin, 16 I. & N. Dec. at
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583. The BIA emphasized that it has never adopted an
inflexible test for determining when 212(c) relief should
be granted. Instead,
The equities that an applicant for section 212(c)
relief must bring forward to establish that
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favorable discretionary action is warranted will
depend in each case on the nature and circumstances
of the ground of exclusion sought waived and on the
presence of any additional adverse matters. As the
negative factors grow more serious it becomes
incumbent upon the applicant to introduce
additional offsetting favorable evidence, which in
some cases may have to involve unusual or
outstanding equities. Such a showing at times may
be required solely by virtue of the circumstances
and nature of the exclusion ground sought waived.
Marin, 16 I. & N. Dec. at 585.
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In a footnote the BIA added that the disfavor attending
serious drug offenses would generally require a showing of
"unusual and outstanding equities" to offset such crimes.
Marin, 16 I. & N. Dec. at 586 n.4. But neither the footnote
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nor the body of the opinion said that a weaker showing would
be sufficient to overcome otherwise heinous crimes that did
not involve drugs. See Cordoba-Chaves v. INS, 946 F.2d 1244
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(7th Cir. 1991) (affirming, without discussion of instant
issue, BIA's denial of discretionary waiver because
"outstanding equities" shown in 1986 hearing were outweighed
by alien's conviction for murder, aggravated battery and a
lesser drug-related crime).
In Matter of Buscemi, 19 I. & N. Dec. 628, 633 (B.I.A.
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1988), a discretionary waiver case involving serious drug-
related crimes, the BIA commented, "The necessity of
demonstrating unusual or outstanding equities is not
exclusively triggered by serious crimes involving controlled
substances....[A]s we indicated in Marin, one must examine
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the gravity of the offense." We do not read Buscemi as
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representing a shift in the BIA's standards, but a
predictable clarification. Petitioner here cannot
realistically claim to have been misled by the Marin
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decision, which obviously warned of the need for greater
equities where, as here, there were especially egregious
disqualifying factors.
(2) BIA's Standard of Review
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Petitioner argues that the BIA exceeded its authority by
conducting a de novo review of the evidence. He claims the
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BIA erroneously refused to accept the IJ's factual findings
as conclusive.
First, we do not agree with petitioner's
characterization of the BIA's procedure. The BIA did not
find new facts nor reweigh those which the IJ had already
found. Instead, the BIA held that the IJ erred by applying
an inappropriate balancing standard. The IJ had not assessed
the facts to determine if petitioner had shown "outstanding
and unusual equities", as required by Marin. Rather the IJ
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had reasoned that since petitioner had family in the United
States, a clean record in prison, and was truly contrite, he
should be given "the opportunity to remain." The BIA did not
abuse its discretion in holding the IJ's decision to be an
error under Marin.
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Second, the BIA searched the record for additional facts
that might demonstrate the "unusual and outstanding" equities
required by Marin, and found none. This second step in the
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BIA's review arguably might be characterized as de novo. But
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it was not error. The BIA has discretion to review the IJ's
decision de novo, and the "full power to determine all
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factual issues before it." Hazzard v. INS, 951 F.2d at 440
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n.4 (quoting 1 C. Gordon & S. Mailman, Immigration Law and
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Procedure, Sect. 3.05[5][b] at p.3-57); Cordoba-Chaves, 946
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F.2d at 1249 (rejecting petitioner's argument that BIA was
required to defer to IJ's factual and credibility findings).
Nor did the BIA abuse its discretion by not remanding to the
IJ. Petitioner offers no reason for compelling a remand
beyond his belief that the IJ is a better fact-finder.
3. Substantial Evidence
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Petitioner's main argument appears to be that since the
IJ concluded that petitioner was entitled to a waiver, the
BIA's contrary decision must be wrong. On review, we do not
choose between the two interpretations. If the BIA's
decision is supported by substantial evidence, meaning "such
relevant evidence as a reasonable mind might accept to
support [such] a conclusion," we must defer to the BIA and
affirm. Blackwood, 803 F.2d at 1168; Martinez v. INS, No.
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92-1008, 1992 U.S. App. LEXIS 17123, at *3 (1st Cir. July 28,
1992).
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There was certainly substantial evidence to support the
BIA's decision. Petitioner conceded commission of a brutal
crime less than three years after entering this country. He
bore the burden of showing that despite this fact there were
countervailing equities entitling him to discretionary relief
from deportation. Hazzard, 951 F.2d at 438.
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The BIA accepted the IJ's assessment of petitioner as
"candid and worthy of belief," possessed of a genuine desire
"to walk the straight and narrow" and having seen "the error
of his ways." But the BIA found the record devoid of any
other evidence probative of the factors listed in Marin and
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other cases, which might demonstrate "unusual and outstanding
equities."
The record showed that most of petitioner's stay in the
United States was spent behind bars. He had no employment
history, no community service, and, the BIA concluded, had
shown no evidence of rehabilitation. Although respondent had
a number of family members in this country, the BIA saw
nothing in the record "to suggest that [he] maintains a
particularly close, supportive relationship with them."
Petitioner argues that the BIA erred in concluding that
there was "no" evidence on each of these subjects. For
example, he points to proof that he was assigned work in
prison as evidence of an employment history. He says his
rehabilitation was demonstrated by such evidence as the
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absence of a prison disciplinary record and his parole after
less than nine years' incarceration. And he argues that he
proved close family ties by his expressed desire not to
return to Portugal because his family was here.
These abstruse interpretations of the evidence aside,
our reading of the record leads us to conclude that the BIA
did not overlook any cogent evidence that might have proved
"outstanding equities" in petitioner's favor. The BIA is not
required to address specifically each item of evidence
presented, so long as it has given reasoned consideration to
the record as a whole. Martinez, 1992 U.S. App. LEXIS at
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17123. Cf. Vergara-Molina v. INS, 956 F.2d 682, 685 (7th
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Cir. 1992) (where evidence showed BIA adequately considered
rehabilitation factor, BIA need not discuss specifically each
fact which petitioner presented); Villaneueva-Franco v. INS,
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802 F.2d 327, 329-30 (9th Cir. 1986) (BIA's recognition
generally of favorable facts without referring specifically
to each fact was not an abuse of discretion).
In conclusion, there is no showing here that the BIA
abused its discretion in denying petitioner a waiver of
deportation under 212(c) of the Act.
The decision of the BIA is affirmed.
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Document Info
Docket Number： 91-2236
Filed Date： 8/25/1992
Precedential Status： Precedential
Modified Date： 9/21/2015