Carter v. INS

• Court: Court of Appeals for the First Circuit
• Decided: July 30, 1996
• Docket: 95-1840
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT



                              _________________________


No. 95-1840



                                    ZAKIA CARTER,



                                     Petitioner,



                                          v.



                       IMMIGRATION AND NATURALIZATION SERVICE,



                                     Respondent.



                              _________________________



                          PETITION FOR REVIEW OF AN ORDER OF

                           THE BOARD OF IMMIGRATION APPEALS



                              _________________________



                                        Before



                          Selya and Boudin, Circuit Judges,
                                            ______________



                           and McAuliffe,* District Judge.
                                           ______________



                              _________________________



               Joseph S. Callahan on brief for petitioner.
               __________________

               Frank W. Hunger, Assistant Attorney General, Civil Division,
               _______________

          and  Philemina  McNeill  Jones,  Assistant  Director,  Office  of
               _________________________

          Immigration Litigation,  United States Department  of Justice, on

          brief for respondent.



                              __________________________



                                    July 30, 1996



                              __________________________


_______________

          *Of the District of New Hampshire, sitting by designation. 



SELYA,  Circuit  Judge.   Invoking  the  newly  enacted
                    SELYA,  Circuit  Judge.
                            ______________



          "battered spouse"  provision of  the Immigration  and Nationality



          Act (I&N  Act), 8 U.S.C.    1154(a)(1)(A)(iii) (1994), petitioner



          Zakia  Carter seeks judicial review  of an order  of the Board of



          Immigration  Appeals (the  Board)  denying her  motion to  reopen



          deportation  proceedings.   Discerning  no  cognizable error,  we



          decline to grant the petition.



                                          I
                                          I



                    Carter, a native and  citizen of Morocco, was convicted



          of assault and battery on March 8, 1981.  After  the victim died,



          Carter pled guilty to a charge of  manslaughter.  The state court



          sentenced her  to  serve 12-20  years  in prison.    She was  not



          released from the penitentiary until March 20, 1993.



                    The  Immigration  and   Naturalization  Service   (INS)



          instituted deportation proceedings  against petitioner on October



          28, 1988  (while she was  still incarcerated).   In its  order to



          show  cause, the  INS charged  her inter  alia with  committing a



          crime involving moral turpitude (for  which she was convicted and



          sentenced to  a prison term  of more  than one year)  within five



          years of her lawful entry into the United States, in violation of



          section  241(a)(2)  of  the  I&N  Act,  8  U.S.C.    1251(a)(2).1

                              
          ____________________



               1The statute reads in pertinent part:



                    Any  alien who  (I) is  convicted of  a crime

                    involving  moral  turpitude committed  within

                    five years . . . after the date of entry, and

                    (II) either is sentenced to confinement or is

                    confined  therefor  . .  .  for  one year  or

                    longer, is deportable.


2



Petitioner disputed  this charge, denying that the  crime she had



          committed involved moral turpitude.



                    On  March 19,  1990,  an immigration  judge (IJ)  found



          petitioner  deportable.   While  her  appeal  to  the  Board  was



          pending,  petitioner,  though  still  incarcerated,  married Dale



          Carter  (a native and citizen  of the United  States).  Following



          her release,  she gave birth to a child, Jamila Carter, on August



          22,  1994.   Six weeks  thereafter, the  Board affirmed  the IJ's



          decision  and entered a deportation order.  See Matter of Carter,
                                                      ___ ________________



          Interim Dec. No. 23-200-544 (BIA 1995).



                    Petitioner subsequently  sought  a divorce.   She  then



          filed  a motion to reopen the  deportation proceedings.  Although



          the  Board  previously found  petitioner  deportable  due to  her



          manslaughter conviction,  her motion asserts an  entitlement to a



          waiver of  excludability premised  on her  status  as a  battered



          spouse.2    The  Board  denied  her  motion  on  July  12,  1995.

                              
          ____________________



          8  U.S.C.    1251(a)(2)(A)(i).    Since  the  charge  under  this

          provision  is the  only charge that  INS pressed, it  is the only

          charge that we discuss.



               2The applicable statute reads in pertinent part:



                    An alien who  is the spouse  of a citizen  of

                    the United  States, who  is a person  of good

                    moral  character,  who  is  eligible   to  be

                    classified as  an immediate  relative .  . .,

                    and who has resided in the United States with

                    the alien's spouse may file a petition  . . .

                    [for relief if]:



                         (I)  the alien  is residing  in the

                         United States, the marriage between

                         the  alien  and   the  spouse   was

                         entered  into in good  faith by the

                         alien, and during the  marriage the



                                          3



Petitioner now seeks judicial  review.  At the present  time, her



          divorce  case  is  pending,  as  are  certain  domestic  violence



          proceedings against her husband.



                                          II
                                          II



                    We pause  to emphasize the circumscribed  nature of our



          review.   The  Board originally  found Carter to  be inadmissible



          (and, therefore, deportable) because she had committed a crime of



          moral  turpitude (and served  more than twelve  months in prison)



          within five  years of entering the United  States.  It denied her



          motion to reopen  for a variety of reasons (most of which related



          to  the  absence  of a  prima  facie  showing  of entitlement  to



          relief).



                    We  inquire only into the  Board's denial of the motion



          to  reopen,  not  its  earlier  adjudication  of  the  merits  of



          petitioner's excludability.   See  Gando-Coello v. INS,  888 F.2d
                                        ___  ____________    ___



          197,  198 (1st  Cir. 1989).   Though  the denial  of a  motion to



          reopen  deportation proceedings  usually possesses  the requisite



          finality and thus triggers the  judicial review provisions of the



          I&N Act,  see, e.g., Baez v. INS, 41 F.3d 19, 21 (1st Cir. 1994);
                    ___  ____  ____    ___



          Goncalves v. INS, 6 F.3d 830, 831-32 (1st Cir. 1993); Athehortua-
          _________    ___                                      ___________

                              
          ____________________



                         alien . . . has been battered by or

                         has  been  the  subject of  extreme

                         cruelty perpetrated  by the alien's

                         spouse; and



                         (II)  the alien  is a  person whose

                         deportation would result in extreme

                         hardship to the alien or a child of

                         the alien.



          8 U.S.C.   1154(a)(1)(A)(iii) (1994).



                                          4



Vanegas v. INS, 876 F.2d 238, 240 (1st Cir. 1989),  we probe that
          _______    ___



          denial solely to determine  whether the Board misread the  law or



          otherwise  abused its  discretion  by acting  in an  arbitrary or



          capricious  fashion.   See  INS v.  Doherty,  502 U.S.  314,  323
                                 ___  ___     _______



          (1992); INS v. Abudu, 485  U.S. 94, 105 (1988); Henry v.  INS, 74
                  ___    _____                            _____     ___



          F.3d 1, 4 (1st Cir. 1996).



                    The Board's discretion is sprawling, but it does not go



          untethered.    "[A]djudicatory  tribunals can  exceed  grants  of



          discretion      even   ringing  grants   of  broad,   essentially



          standardless discretion   in various ways."  Henry, 74 F.3d at 4.
                                                       _____



          In exercising  discretionary authority, the Board  is "obliged to



          weigh all the pertinent factors (both favorable and unfavorable),



          to exhibit due consideration for the universe of weighted factors



          when tallying the equities, to exercise independent judgment, and



          to  state plainly  its reasons  for granting or  denying relief."



          Bing Feng Chen v. INS, ___ F.3d ___, ___ (1st Cir. 1996) [No. 95-
          ______________    ___



          2309,  slip  op.  at   6].    Once  the  Board   satisfies  these



          obligations, however, it has discretion not only to deny a motion



          to reopen  but also to deny a hearing thereon.  See Moore v. INS,
                                                          ___ _____    ___



          715 F.2d 13, 16 n.2 (1st Cir. 1983).



                                         III
                                         III



                    It  is  settled that  the Board  can  deny a  motion to



          reopen  if  (1) the  alien  fails  to  limn a  prima  facie  case



          warranting relief, or (2)  the alien fails to introduce  material



          evidence that  was  not previously  available,  discoverable,  or



          considered at the  original hearing, or (3) the  Board reasonably


5



determines  that the equities do not justify the application of a



          discretionary  balm.  See 8 C.F.R.    3.2 (1996); see also Abudu,
                                ___                         ___ ____ _____



          485  U.S. at 104-05 (applying this paradigm to the Board's denial



          of a motion  to reopen);  Gando-Coello, 888 F.2d  at 198  (same).
                                    ____________



          Here, the Board had ample justification to  deny the petitioner's



          motion.



                    1.   INS Approval.  INS authorization of a petition for
                    1.   INS Approval.
                         ____________



          a status adjustment  under 8 U.S.C.   1154 must  occur before the



          Board can  grant such  relief.   See  8 U.S.C.    1154(b)  (1994)
                                           ___



          (placing  upon   the  Attorney   General  or  her   designee  the



          responsibility to determine in the first instance "that the facts



          stated in the  petition are true and that  the [petitioner] is an



          immediate relative").  In this case, petitioner failed to present



          her petition for adjusted status as a battered spouse to the INS,



          and thus did not secure the requisite agency approval.



                    Approval  by  the INS  is not  an empty  exercise, but,



          rather, ensures that  the agency has a meaningful  opportunity to



          verify  a  petitioner's claim  that  she  has been  subjected  to



          physical abuse  and otherwise satisfies  the statutory  criteria.



          Since the INS's imprimatur is  a condition precedent to obtaining



          relief under  8 U.S.C.   1154(a)(1)(A)(iii), petitioner's failure



          to comply with this requirement means that she is unable to state



          a  prima facie case.  Consequently, the Board's refusal to reopen



          the proceedings is unimpugnable.3

                              
          ____________________



               3Highlighting this  same deficiency, the INS  challenges our

          jurisdiction on the  basis that petitioner failed to  exhaust all

          available administrative  remedies in that she  neglected to have



                                          6



2.  Good Moral Character; Extreme Hardship.  Petitioner
                    2.  Good Moral Character; Extreme Hardship.
                        ______________________________________



          also  failed to establish a  prima facie case  under the battered



          spouse provision because she did not submit adequate  evidence of



          either "good moral  character" or "extreme hardship."  We explain



          briefly.



                    As  to  character, the  only  evidence that  petitioner



          proffered consists of a copy of her prison records, detailing her



          good  behavior and involvement in training programs while she was



          incarcerated.   The  Board declined  to accept  these records  as



          sufficient to show good moral character, and we are not persuaded



          that the Board's position is arbitrary or capricious.



                    We  note that  even  appropriate extrinsic  evidence of



          good  moral  character   might  well  be   futile  here  due   to



          petitioner's  conviction.   In the  deportation case  proper, the



          Board found  petitioner's manslaughter offense  to be a  crime of



          moral turpitude.  The  Board's judgments in such matters  are not



          easily dismissed, see Franklin v. INS, 72 F.3d 571, 573 (8th Cir.
                            ___ ________    ___



          1996)  (explaining that  since  moral turpitude  is a  "nebulous"



          concept, courts will only overturn the Board's determination that



          a  crime  fits  within  that   rubric  if  the  determination  is



          unreasonable);  and, in  all events,  we think  that manslaughter

                              
          ____________________



          her petition verified by the INS..   "It is a familiar tenet that

          when an appeal presents a jurisdictional quandary, yet the merits

          of  the  underlying  issue, if  reached,  will  in  any event  be

          resolved  in   favor  of   the  party  challenging   the  court's

          jurisdiction,  then the  court  may  forsake  the  jurisdictional

          riddle and simply dispose of  the appeal on the merits."   United
                                                                     ______

          States v. Stoller, 78  F.3d 710, 715 (1st Cir.  1996) (collecting
          ______    _______

          cases).   This  is such a  case.  Hence,  we take no  view of the

          government's jurisdictional argument.



                                          7



stemming  from assault  and battery is  properly classified  as a



          crime of moral turpitude.  Compare, e.g., Asencio v. INS, 37 F.3d
                                     _______  ____  _______    ___



          614, 615 (11th  Cir. 1994)  (holding that attempted  murder is  a



          crime of moral turpitude); Rodriguez-Padron v. INS, 13 F.3d 1455,
                                     ________________    ___



          1458  (11th Cir. 1994)  (holding that  second-degree murder  is a



          crime of moral turpitude);  Gouveia v. INS, 980 F.2d  814, 815-16
                                      _______    ___



          (1st   Cir.  1992)  (holding  that  rape  is  a  crime  of  moral



          turpitude); Thomas v. INS,  976 F.2d 786, 787-88 (1st  Cir. 1992)
                      ______    ___



          (holding assault and  battery with  a baseball bat  to be  crimes



          involving moral turpitude).  Accordingly, petitioner's conviction



          for  manslaughter not  only  would constitute  a  violation of  8



          U.S.C.     1251(a)(2)(A)(i)  but  also would  preclude  her  from



          establishing  the  "good moral  character"  necessary to  qualify



          under the battered spouse provision.  See Flores  v. INS, 66 F.3d
                                                ___ ______     ___



          1069, 1073 (9th Cir.  1995) (holding that petitioner's conviction



          for welfare fraud precluded her from establishing the "good moral



          character"  required to  apply  for a  suspension of  deportation



          under 8 U.S.C.   1254(a)(1)).



                    Relatedly, petitioner neglected to proffer any evidence



          as  to how deportation would  work an extreme  hardship to either



          herself or her child.  This omission, in and of itself, prevented



          the establishment of a prima facie case.  This is especially true



          in  light of the Board's wide discretion in determining what does



          and does not  rise to the level of "extreme  hardship."  See Luna
                                                                   ___ ____



          v. INS, 709 F.2d 126, 127 (1st Cir. 1983).
             ___



                                          IV
                                          IV


8



We need go no  further.  Given  the absence of a  prima



          facie  case,  the  Board  acted well  within  its  discretion  in



          summarily denying petitioner's motion to reopen.


The petition for review is  denied and dismissed.   See
                    The petition for review is  denied and dismissed.
                    ________________________________________________    ___



          1st Cir. R. 27.1.


9