Kassim v. INS ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
HAKIM HUSSEIN KASSIM,
Petitioner,
v.
No. 96-1206
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A28-382-294)
Submitted: July 30, 1996
Decided: September 12, 1996
Before LUTTIG and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Hakim Hussein Kassim, Petitioner Pro Se. David Michael McCon-
nell, Richard Michael Evans, Anthony Wray Norwood, Christine
Audrey Bither, John Thomas Lynch, Jr., UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Hakim Hussein Kassim, a citizen and national of Somalia, petitions
for review of an order of the Board of Immigration Appeals (Board).
The Board dismissed his appeal from the decision of an Immigration
Judge (IJ) finding Kassim deportable; denying his application for a
waiver of deportability under § 212(c) of the Immigration and Nation-
ality Act, 8 U.S.C.A. § 1182(c) (West Supp. 1996); and denying his
applications for asylum, 8 U.S.C.A. § 1158(a) (West Supp. 1996), and
withholding of deportation, 8 U.S.C.A. § 1253(h) (West Supp. 1996).
We have jurisdiction over Kassim's petition pursuant to 8 U.S.C.A.
§ 1105a(a) (West Supp. 1996).
Kassim entered the United States as a student in November 1984.
His father, a dissident Somali politician, joined the family in the
United States in 1985. Kassim's father was granted asylum status, and
Kassim received derived asylum status. He adjusted his status to Law-
ful Permanent Resident, effective October 3, 1987.
Kassim has had many convictions for driving while intoxicated. In
1992, he was arrested and charged with fondling the eleven-year-old
son of a friend. He pled nolo contendere and was sentenced to six
months imprisonment. In 1993, Kassim was charged with attempting
to fraudulently obtain a credit card and travelers checks. While on
bond, Kassim was arrested for driving while intoxicated. He was sen-
tenced to eighteen months imprisonment on the latter charge and a
two year suspended sentence with three years supervised probation
for the credit card fraud. Kassim also admitted to several other arrests
without convictions.
Kassim's father died in 1994. His mother lives in Canada, and his
stepmother and seven siblings are naturalized American citizens. Kas-
sim has attended a variety of schools, colleges, and community col-
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leges, and has had several jobs. He has been in various alcohol
rehabilitation programs.
In 1994, Kassim was ordered to show cause why he should not be
deported on the grounds that he had been convicted of two crimes of
moral turpitude not involving a single scheme or plan. 8 U.S.C.A.
§ 1251(a)(2)(A)(ii) (West Supp. 1996). After a lengthy hearing, the IJ
concluded that Kassim's deportability had been established based on
his criminal history and admissions. Somalia was designated as the
country of deportation.
Kassim sought three types of relief from deportation: asylum, with-
holding of deportation, and a discretionary waiver under § 212(c) of
the Immigration Act, 8 U.S.C.A. § 1182(c). He presented evidence
about his life and family. Kassim testified about the political and
social unrest in Somalia, and his fears for his survival should he
return there. Two of Kassim's brothers testified about the situation in
Somalia and about their wish that Kassim could assume his role as
head of the family.
The IJ found Kassim deportable under § 1251(a)(2)(A)(ii), holding
that he had committed two or more crimes of moral turpitude not aris-
ing out of a single scheme or plan. The Board upheld this finding.
Kassim challenges the holding that the sexual offense conviction was
a crime of moral turpitude.
Whether a crime involves moral turpitude within the meaning of
the Immigration Act is a legal issue we review de novo. We give "due
deference to the BIA's interpretation of the deportation statute,"
Cabral v. I.N.S., 15 F.3d 193, 194 (1st Cir. 1994), provided it is based
on a permissible construction of the statute. Akindemowo v. I.N.S., 61
F.3d 282, 284 (4th Cir. 1995). Congress did not define a "crime
involving moral turpitude," leaving the phrase to administrative and
judicial interpretation. Cabral, 15 F.3d at 195. The Board looks to the
elements of the crime rather than to the facts surrounding each crime.
Franklin v. I.N.S., 72 F.3d 571, 572 (8th Cir. 1995)
As the IJ noted, we held a crime involving Md. Ann. Code art. 27,
§ 464 (1976), a predecessor statute to Md. Ann. Code art. 27, § 464B
(1994), to be manifestly a crime of moral turpitude. Castle v. I.N.S.,
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541 F.2d 1064, 1066 (4th Cir. 1976). We uphold the ruling of the IJ
and the Board that this reprehensible and immoral act involving a
child does involve moral turpitude. Therefore, the IJ properly found
Kassim deportable under § 1251(a)(2)(A)(ii).
Kassim requested withholding of deportation under 8 U.S.C.A.
§ 1253(h)(1), and asylum under 8 U.S.C.A.§ 1158(a). The withhold-
ing provision is not applicable if the alien "having been convicted
. . . of a particularly serious crime, constitutes a danger to the com-
munity of the United States." 8 U.S.C.A. § 1253(2)(B) (West Supp.
1996); 8 C.F.R. § 208.16(c)(2)(ii) (1995). Likewise, asylum is not
available if the alien has been convicted of a particularly serious
crime and is therefore a danger to the community of the United States.
8 C.F.R. § 208.14(d)(1) (1995). If an applicant has been convicted of
a particularly serious crime, then he is presumed to be a danger to the
community. Kofa v. I.N.S., 60 F.3d 1084, 1088-89 (4th Cir. 1995) (in
banc).
The IJ properly analyzed the circumstances of the sexual offense
to determine that this was a particularly serious crime. The crime was
one against a person rather than property, indeed against a child, with
substantial risk of coercion and violence. The IJ found that the sexual
offense would cause long-lasting psychological injury. The Board
affirmed this holding on the reasoning of the IJ, and held that Kas-
sim's drunkenness did not excuse its seriousness. Giving due defer-
ence to the agency's interpretation of the statute, Akindemowo, 61
F.3d at 284-85, we uphold this ruling. Kassim was therefore ineligible
for either asylum or withholding of deportation.
Kassim also appeals the Board's denial of his application for a dis-
cretionary waiver of deportation under § 212(c) of the Immigration
and Nationality Act, 8 U.S.C. § 1182(c). We review this decision for
abuse of discretion, and uphold it unless it is arbitrary or capricious.
Casalena v. I.N.S., 984 F.2d 105, 106 (4th Cir. 1993). The alien bears
the burden of showing that he merits favorable action. Id. Kassim
meets the statutory requirements for the waiver, in that he is a lawful
permanent resident who has resided in the United States for seven
years. But he failed to carry his burden of convincing the Board that
he deserved the favorable exercise of discretion. See Casalena, 984
F.2d at 107 n.6.
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In considering a 212(c) application, the Board must balance social
and humane considerations in the applicant's favor against adverse
factors that show his undesirability as a permanent resident. Cortes-
Castillo v. I.N.S., 997 F.2d 1199, 1202 (7th Cir. 1993). The IJ consid-
ered all the relevant factors. In Kassim's favor, he recognized family
ties in the United States with his siblings and stepmother as a substan-
tial or outstanding equity. He noted Kassim's eleven-year residence
in this country, and the fact that he came here when he was sixteen.
The IJ acknowledged that Kassim's family may suffer emotional
hardship when he is deported, and that Kassim would suffer hardship
in moving to Somalia, particularly considering the current chaotic
conditions of that country. On the negative side, the IJ noted particu-
larly Kassim's seven-year history of alcohol abuse and criminal
behavior. He found that no family member is financially dependent
on Kassim, and that Kassim has been an emotional and financial bur-
den to his family since 1987. The IJ found that Kassim had squan-
dered numerous opportunities to rehabilitate himself from alcohol and
from his life of crime. He observed that Kassim's criminal activities
have become more serious over time. Accordingly, the IJ denied a
§ 212(c) waiver. The Board affirmed, agreeing that the "outstanding
and unusual" equities Kassim presents are outweighed by his exten-
sive criminal record.
We do not have authority to determine the weight to be given each
factor, Gouveia v. I.N.S., 980 F.2d 814, 819 (1st Cir. 1992), including
the applicant's criminal record. Hajiani-Niroumand v. I.N.S., 26 F.3d
832, 836 (8th Cir. 1994). Even a showing of outstanding equities does
not require relief, if the Board in its discretion decides that they are
outweighed by negative factors. Gandarillas-Zambrana v. B.I.A., 44
F.3d 1251, 1259 n.4 (4th Cir.), cert. denied, ___ U.S. ___, 64
U.S.L.W. 3239 (U.S. Oct. 2, 1995) (No. 94-1720). We conclude that
the Board has appropriately exercised its discretion in this case, and
affirm denial of a § 212(c) waiver.
Accordingly, although we grant Kassim leave to proceed in forma
pauperis, we deny his motion for counsel and affirm the decision of
the Board. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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