De Freitas v. INS

• Court: Court of Appeals for the First Circuit
• Decided: August 25, 1992
• Docket: 91-2236
• Status: Published

Opinion

USCA1 Opinion

                                [NOT FOR PUBLICATION]

___________________

No. 91-2236

FRANCISCO MARIA DE FREITAS NOIA,

                                     Petitioner,

                                          v.

                       IMMIGRATION AND NATURALIZATION SERVICE,

                                     Respondent.

                                  __________________

                          PETITION FOR REVIEW OF AN ORDER OF
                           THE BOARD OF IMMIGRATION APPEALS

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                           Campbell, Senior Circuit Judge,
                                     ____________________
                               and Cyr, Circuit Judge.
                                        _____________

                                 ___________________

               Robert D. Watt, Jr., on brief for petitioner.
               __________________
               Stuart  M. Gerson,  Assistant  Attorney  General,  David  J.
               _________________                                  _________
          Kline,  Assistant  Director,  and  William  J. Howard,  Attorney,
          _____                              __________________
          Office of Immigration Litigation, on brief for respondent.

__________________
                                   August 25, 1992
                                 __________________ 

Per  Curiam.   Petitioner,  Francisco  Maria De  Freitas
                 ___________

            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
                                        ____ __________

            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
                                                          _______

            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,
                                            _______    ___

            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.
                           ______     ___

            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

____________________

            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
                          ___ ______    ___
            Cir. 1990); Lozado  v. INS, 857 F.2d  10, 11, n. 1  (1st Cir.
                        ______     ___
            1988). 

                                         -3-

presented in  his behalf."  Matter of Marin,  16 I. & N. Dec.
                                        _______________

            581, 584 (B.I.A. 1978); Joseph v. INS, 909 F.2d 605 (1st Cir.
                                    ______    ___

            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
                                        ______

            Williams v. INS, 773 F.2d 8, 9 (1st Cir. 1985)).  
            ________    ___

____________________

            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,
                                                   ______________    ___
            946 F.2d  1245, 1246 (7th  Cir. 1991); Blackwood v.  INS, 803
                                                   _________     ___
            F.2d  1165 (11th Cir. 1986); Vergara-Molina  v. INS, 956 F.2d
                                         ______________     ___
            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
                            ______
            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;
                                    ______________
            Blackwood,  803  F.2d  at 1168;  or  properly  considered all
            _________
            important factors, Vergara-Molina, 956 F.2d at 685.  A fourth
                               ______________
            case cited by respondent,  INS v. Jong Ha Wang,  450 U.S. 139
                                       ___    ____________
            (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
                                          __ ____

            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
                 ________________________________________

                 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.
                            _______________

            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
                           _____

            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
                                                _____

            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.
            _____

                  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
            _____

            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
                                ___  ______________    ___

            (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.
                    __________________

            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
                                                               _______

            representing   a  shift  in   the  BIA's  standards,   but  a

            predictable   clarification.       Petitioner   here   cannot

            realistically   claim  to  have  been  misled  by  the  Marin
                                                                    _____

            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
                   _____________________________

                 Petitioner argues that the BIA exceeded its authority by

            conducting a de novo review of  the evidence.  He claims  the
                         __ ____

            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
                                                   _____

            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
                        _____

            BIA's review arguably might be characterized as de novo.  But
                                                            __ ____

            it was not  error.  The BIA has discretion to review the IJ's

            decision de  novo,  and  the "full  power  to  determine  all
                     __  ____

            factual issues before it."   Hazzard v. INS, 951 F.2d  at 440
                                         _______   ____

            n.4 (quoting  1 C. Gordon  & S. Mailman, Immigration  Law and
                                                     ____________________

            Procedure, Sect. 3.05[5][b]  at p.3-57); Cordoba-Chaves,  946
            _________                                ______________

            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
                     ____________________

                 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.
                      _________                     ________     ___

            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.
                               _______

                 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
                                                                _____

            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
                                      ________

            17123.   Cf. Vergara-Molina  v. INS, 956  F.2d 682,  685 (7th
                     ___ ______________     ___

            Cir. 1992) (where evidence  showed BIA adequately  considered

            rehabilitation factor, BIA need not discuss specifically each

            fact which petitioner presented);  Villaneueva-Franco v. INS,
                                               __________________    ___

            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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