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USCA1 Opinion
November 17, 1992
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1188
TOMAS ELIGIO PEREZ-GUZMAN,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
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Before
Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Carl Krueger on brief for petitioner.
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Stuart M. Gerson, Assistant Attorney General, Civil
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Division, and Thomas W. Hussey, Deputy Director, Office of
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Immigration Litigation, Civil Division, on brief for respondent.
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Per Curiam. This is a petition for review of a final
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order of deportation. The sole issue involved is whether the
Board of Immigration Appeals (BIA) erred in denying
petitioner's request for voluntary departure in lieu of
deportation. We find no abuse of discretion and therefore
affirm the decision below.
I.
Petitioner is a 41-year-old native and citizen of the
Dominican Republic. In March 1985, he entered the United
States without inspection. In April 1986, he married Selene
Garcia, a Dominican native and lawful permanent resident of
the United States. Apart from a six-month separation in
1987, the two thereafter lived together in Providence, Rhode
Island. Garcia had four children from a previous
relationship; petitioner had two of his own, who remained in
the Dominican Republic. In June 1986, Garcia applied for a
second preference immigrant visa for petitioner. That
application was approved the following month, placing
petitioner on a waiting list to await the availability of a
visa number for his particular nationality and immigrant
category. This process, according to the government, can
take several years.
In November 1987, petitioner was arrested on a charge of
making a false statement in a passport application, in
violation of 18 U.S.C. 1542. The evidence showed that in
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August 1987 he had used a false Puerto Rican birth
certificate (which he had purchased privately for $100) to
apply for a passport.1 Petitioner pled guilty to the charge
on December 9, 1987, and agreed not to oppose deportation.
Sentencing was deferred, and petitioner was released to INS
custody.
Deportation proceedings were then instituted, premised
on petitioner's original entry without inspection. A show
cause order issued in December 1987, and a hearing before an
immigration judge (IJ) occurred over three days between March
and June 1988. Petitioner conceded deportability, and asked
for discretionary relief in the form of voluntary departure.
His principal request was that he be allowed to depart in six
months: he explained that his wife was expecting a child in
October 1988 and that he wished to remain until that time.
He later mentioned, during his testimony, that he also wished
to wait in this country until a visa became available. The
IJ denied the request. Relying on the false-statement
conviction and other factors, he determined that petitioner
was both statutorily ineligible for such relief and
undeserving of same in the exercise of discretion. The BIA
affirmed on the latter ground alone.
II.
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1. Petitioner explained at the deportation hearing that he
had sought to return temporarily to the Dominican Republic
because one of his children was ill.
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Voluntary departure is a privilege which the Attorney
General is authorized to bestow "in his discretion." 8
U.S.C. 1254(e). The award of voluntary departure to an
alien who would otherwise be deported entails several
advantages: (1) it allows him to avoid the stigma of
deportation; (2) it allows him to select his own destination;
and (3) it facilitates the possibility of return to the
United States.2 See, e.g., Landon v. Plasencia, 459 U.S.
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21, 26 & n.4 (1982); Garcia-Lopez v. INS, 923 F.2d 72, 74-75
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(7th Cir. 1991); Contreras-Aragon v. INS, 852 F.2d 1088, 1090
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(9th Cir. 1988); 3 C. Gordon & S. Mailman, Immigration Law
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and Procedure 74.02[1][a], at 74-16 (1992).
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To be eligible for voluntary departure, an alien must
establish that he has been of good moral character for at
least the five years preceding his application, and also that
he has the financial means to depart. See 8 U.S.C.
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1254(e). In addition to these statutory requirements, he
must demonstrate equities that outweigh any adverse factors
and merit a favorable exercise of discretion. See, e.g.,
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Abedini v. INS, 971 F.2d 188, 192-93 (9th Cir. 1992);
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Villanueva-Franco v. INS, 802 F.2d 327, 329 (9th Cir. 1986).
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2. Unless the Attorney General otherwise permits, an alien
who has been excluded from admission and deported cannot
again seek admission within one year, and one who has been
arrested and deported cannot do so for five years. See 8
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U.S.C. 1182(a)(6). Voluntary departure enables an alien to
avoid these restrictions.
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We review the denial of voluntary departure for abuse of
discretion. See, e.g., Oluyemi v. INS, 902 F.2d 1032, 1034
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(1st Cir. 1990). "The denial will be upheld unless it was
made without a rational explanation, inexplicably departed
from established policies, or rested on an impermissible
basis ...." Williams v. INS, 773 F.2d 8, 9 (1st Cir. 1985)
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(quotations omitted) (denial of motion to reopen deportation
proceedings); see, e.g., Garcia-Lopez, 923 F.2d at 74
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(applying this standard to denial of voluntary departure).
So long as the Board weighed all the favorable and
unfavorable factors and supported its conclusion with a
reasoned explanation based on legitimate concerns, its
decision will be upheld. See, e.g., Abedini, 971 F.2d at
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193; Estrada-Posadas v. INS, 924 F.2d 916, 920 (9th Cir.
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1991).
III.
As mentioned, the BIA affirmed on the basis of the IJ's
alternative rationale that the equities in petitioner's favor
did not sufficiently outweigh the adverse factors so as to
warrant a favorable exercise of discretion.3 The IJ took
note of the following factors. That petitioner was married
to a lawful permanent resident with four children, that his
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3. See INS v. Rios-Pineda, 471 U.S. 444, 449 (1985) ("if the
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Attorney General decides that relief should be denied as a
matter of discretion, he need not consider whether the
threshold statutory eligibility requirements are met")
(denial of motion to reopen).
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wife was pregnant, and that he had an approved visa petition
all weighed in his favor. On the other hand, petitioner had
been convicted of making a false statement in applying for a
passport and had earlier obtained a counterfeit birth
certificate. He had violated the immigration laws by
entering without inspection and then by working
intermittently without authorization. He provided no support
to his wife or stepchildren. And the IJ found that he
exhibited a "lack of complete candor" during his testimony.4
In determining that these adverse factors outweighed the
equities, the IJ and the BIA acted in accord with the
approach taken in analogous cases in which voluntary
departure has been denied.5
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4. During his direct testimony, petitioner implied (1) that
he had resided with his wife ever since their marriage, and
(2) that he would not violate the requirement that he obtain
authorization before working in this country. Only when
pressed on cross-examination did he disclose that he had been
separated from his wife for six months, and that he had
worked without authorization. The IJ viewed this misleading
testimony as an attempt to "amplify his favorable equities."
5. See, e.g., Abedini, 971 F.2d at 193 (entry without
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inspection; false passport); Estrada-Posadas, 924 F.2d at
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920-21 (two entries without inspection; discrepancies between
written application and oral testimony); Garcia-Lopez, 923
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F.2d at 75-76 (approved visa petition; citizen wife and
stepchild; multiple illegal entries, once with false
passport); Villanueva-Franco, 802 F.2d at 329-30 (approved
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visa petition; citizen wife and child; entry without
inspection and multiple drunk-driving convictions); Carnejo-
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Molina v. INS, 649 F.2d 1145, 1151-52 (5th Cir. 1981) (two
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citizen children; several illegal entries, once with false
passport; evasive testimony)
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Petitioner advances several specific challenges to the
agency decision, none of which proves persuasive. First, he
contends that his false-statement conviction and his
acquisition of a false birth certificate together constituted
only a single adverse factor--not two, as the IJ held. Yet
the latter event was a separate undertaking and was
appropriately deemed an independent factor. Second, he
argues that the IJ "inflated the importance" of his other
immigration law violations--his entry without inspection and
unauthorized employment--by describing them as serious
adverse factors. Yet he relies on cases holding that such
violations provide an insufficient basis for finding a lack
of "good moral character" under the statute. Here, his
immigration transgressions were not invoked to find him
statutorily ineligible. Rather, they were considered in
connection with the agency's discretionary determination--an
inquiry to which immigration law violations are plainly
relevant. See, e.g., Garcia-Lopez, 923 F.2d at 75.
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Third, petitioner objects to the BIA's reference to his
"history of fraudulent conduct over the years to avoid the
immigration laws." He contends that the false-statement
conviction was his only fraudulent action. Yet the BIA was
plainly referring as well to his entry without inspection,
his acquisition of a false birth certificate, and his
unauthorized employment. Fourth, he argues that the agency
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improperly failed to regard his four stepchildren as a
favorable equity. To the contrary, the IJ specifically
mentioned them as a favorable factor. It is true that the IJ
emphasized the relationship of those children to their mother
rather than to petitioner. Yet given that petitioner's wife
spoke of them in her testimony as "my" children, and given
that petitioner has provided them with no financial support,
we cannot say such emphasis was misplaced.
Finally, petitioner complains that, during the hearing,
he was prevented from documenting his reasons for seeking an
extended period of voluntary departure. Specifically, he
sought to introduce testimony describing the hardship that he
and his family would suffer if he were unable to remain for
the birth of his child and the availability of an immigrant
visa.6 The IJ barred such testimony, permitting him to
describe only the amount of time that would be necessary to
get his affairs in order. Petitioner's objection to this
ruling fails for a number of reasons. To the extent such
evidence would have pertained only to the length of voluntary
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departure requested, it is irrelevant to the question here of
whether such relief (of whatever duration) was properly
denied. Moreover, while it is true that an IJ "is not
limited as to the period of time he may grant for voluntary
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6. No detailed offer of proof was made, and petitioner has
not since specified whether such hardship would have entailed
anything more than the obvious dislocations.
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departure," the "usual period of time allowed ... is 30
days," and such relief may not be granted "for an indefinite
period of time." In re Quintero, 18 I. & N. Dec. 348, 351
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(1982). Voluntary departure is thus an inappropriate
mechanism for delaying departure indefinitely in order to
await an immigrant visa. See, e.g., C. Gordon & S. Mailman,
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supra, at 74-14. Cf. Oluyemi, 902 F.2d at 1033-34 (request
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to stay in this country pending outcome of visa petition, and
accompanying request for voluntary departure, were properly
denied); Lad v. INS, 539 F.2d 808, 810 (1st Cir. 1976)
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(request for indefinite period of voluntary departure because
of alien's desire to pursue collateral litigation was
properly denied). As to petitioner's request to attend the
birth of his child, it suffices at this point to observe that
such event occurred over four years ago.
We find that the agency considered all the equities,
balanced them against the adverse factors, and provided a
rational explanation for its decision. We therefore find no
abuse of discretion and summarily affirm the BIA's decision
under Loc. R. 27.1.
Affirmed.
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Document Info
Docket Number： 92-1188
Filed Date： 11/17/1992
Precedential Status： Precedential
Modified Date： 9/21/2015