De Medeiros v. INS

Opinion

USCA1 Opinion

United States Court of Appeals
                            United States Court of Appeals

                                For the First Circuit
                                For the First Circuit


[Not for Publication]

                                 ____________________


No. 96-1456



                         CARLOS ALBERTO TARANAS DE MEDEIROS,



                                     Petitioner,



                                          v.



                       IMMIGRATION AND NATURALIZATION SERVICE,



                                     Respondent.


____________________


PETITION FOR REVIEW OF AN ORDER



                         OF THE BOARD OF IMMIGRATION APPEALS



                                 ____________________



                                        Before



                                Boudin, Stahl and Lynch

                                    Circuit Judges
                                    ______________


____________________



            Gary A. Pappas was on brief for petitioner.
            ______________

            Frank W.  Hunger, Assistant  Attorney General, with whom  David M.
            ________________                                          ________

        McConnell,  Assistant Director, Office of Immigration Litigation, were
        _________

        on brief for respondent.

                                 ____________________



                                   October 25, 1996

                                 ____________________



PER CURIAM.  Carlos  Alberto Taranas de Medeiros, a
                      PER CURIAM.



            citizen  of Portugal and  a lawful permanent  resident of the



            United States since 1970, challenges the Board of Immigration



            Appeals' denial  of his  request for relief  from deportation



            under Immigration  and Nationality Act    212(c), 8  U.S.C.  



            1182(c).  He does not appeal the  Board's decision that he is



            deportable under INA   241(a)(4),1 8 U.S.C.   1251(a)(4).  We



            affirm.2



                                
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            1.  The  statute codified at   241(a)(4) at the time of these

            proceedings  is presently codified  at    241(a)(2)(A)(ii), 8

            U.S.C.   1251(a)(2)(A)(ii).



            2.  The  recently enacted  Antiterrorism and  Effective Death

            Penalty Act  of 1996  (AEDPA), P.L.  104-132, 110 Stat.  1214

            (Apr.  24, 1996) does not affect this appeal.  Section 440(a)

            of AEDPA on its  face deprives the federal appeals  courts of

            jurisdiction  to  review deportation  orders  entered against

            aliens who  are deportable for, inter  alia, having committed
                                            _____  ____

            two  crimes  involving  moral  turpitude,  but  this  bar  to

            judicial  review  does  not  apply unless  both  crimes  were

            committed within five years after the alien's entry  into the

            United States.

                      Section 440(a)  of AEDPA states:   "Any final order

            of deportation against an alien by reason of having committed

            a criminal offense . . . covered  by section 241(a)(2)(A)(ii)

            for  which both  predicate  offenses are  covered by  section

            241(a)(2)(A)(i),  shall  not  be  subject to  review  by  any

            court."  In essence, then, the AEDPA jurisdictional provision

            applies to cases  in which  aliens found  deportable under   

            241(a)(2)(A)(ii)  (two  crimes  of moral  turpitude  any time

            after  entry  not arising  out  of  same  scheme of  criminal

            misconduct) also meet the standards of   241(a)(2)(A)(i) (one

            crime  of moral  turpitude within  5 years  after entry,  for

            which  a sentence of  one year or  more may be  imposed).  In

            Medeiros's  case,  both  of  the two  crimes  supporting  the

            finding of his deportability were committed in 1984, 14 years

            after his  entry into the  country.  Thus,  although Medeiros

            was found to be deportable based upon his convictions for two

            crimes involving  moral turpitude,  neither of  the predicate

            offenses  are covered  by    241(a)(2)(A)(i),  and thus  this

            court has jurisdiction to review the case.



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Our review in   212(c) cases is solely for abuse of



            discretion.   Chen  v. INS,  87 F.3d  5,  8 (1st  Cir. 1996);
                          ____     ___



            Gouveia v. INS,  980 F.2d 814, 817 (1st Cir.  1992).  We have
            _______    ___



            said that there are three ways in which the Board  can commit



            an  abuse  of  discretion:   "by  neglecting  to  consider  a



            significant   factor   that   appropriately  bears   on   the



            discretionary decision, by attaching  weight to a factor that



            does not appropriately bear on  the decision, or by  assaying



            all the  proper factors and no improper ones, but nonetheless



            making  a clear judgmental error in weighing them."  Henry v.
                                                                 _____



            INS, 74 F.3d 1, 4  (1st Cir. 1996).  Medeiros makes  no claim
            ___



            that the  Board ignored  a relevant  factor or  considered an



            irrelevant  one.   His  sole  contention  is that  the  Board



            improperly weighed the factors.



                      Where "the record  reflects a  plausible basis  for



            the  Board's determination," however,  "we are constrained to



            find that the Board acted well within its broad discretionary



            powers in refusing to grant the waiver."  Chen, 87 F.3d at 9.
                                                      ____



            The record before  the Board,  with its  ample references  to



                                
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                      It is  similarly clear  that AEDPA does  not render

            Medeiros  ineligible to seek   212(c) relief.  AEDPA   440(d)

            amended  INA    212(c)  in much  the same  way that    440(a)

            amended the INA's appellate  review section.  Section 212(c),

            as amended by  AEDPA, bars from  seeking relief aliens  found

            deportable  "by  reason  of  having  committed  any  criminal

            offense covered  in section  241(a)(2)(A)(ii) for which  both

            predicate offenses are  covered by section  241(a)(2)(A)(i)."

            As discussed  above, Medeiros'  offenses, committed  14 years

            after  his entry  into  the country,  are  not covered  by   

            241(a)(2)(A)(i).



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Medeiros's considerable criminal activity,3  clearly reflects



            a plausible basis for the denial of the waiver.  This case is



            on  all fours with our  decision in Gouveia,  where we upheld
                                                _______



            the Board's  discretionary denial  of    212(c)  relief to  a



            deportable alien.  In Gouveia,  as here, the Board adequately
                                  _______



            "took  into account  petitioner's  familial equities,  . .  .



            lengthy period of residency,  and numerous positive character



            references."  Gouveia, 980 F.2d at 818-19.  And in that case,
                          _______



            as  here,  "[t]he Board's  decision  makes  manifest that  it



            appropriately considered  the entire panoply  of positive and



            negative  factors  in declining  to  grant  a  waiver."   Id.
                                                                      ___



            Finally,  in Gouveia, as here,  the Board decided  in the end
                         _______



            "that  petitioner's equities  did  not  sufficiently tip  the



            scales."  Id.
                      ___



                      Because we look only for an abuse of discretion, it



            is  not our place to substitute our judgment for the judgment



            of the  Board.  See Henry,  74 F.3d at 7  ("A reviewing court
                            ___ _____



                                
            ____________________



            3.  Medeiros's criminal  record includes, in addition  to the

            two assault  and battery convictions (which  formed the basis

            of the finding of deportability):  threatening, breaking, and

            entering  in the  nighttime  with intent  to commit  larceny;

            receiving stolen property; possession of a Class C controlled

            substance  with intent  to dispense;  unlawful carrying  of a

            dangerous  weapon;   loitering;  unlawful  possession   of  a

            dangerous weapon; unlawful possession of a Class D controlled

            substance; disorderly conduct; disturbing the peace; open and

            gross lewdness; armed assault  in a dwelling; intimidation of

            a witness;  malicious destruction of property  valued at less

            than $100; non-support of  a minor child; and  numerous motor

            vehicle licensing and registration infractions.  One of these

            criminal convictions -- for  disorderly conduct -- came after

            the INS instituted the deportation proceedings against him.



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may not reweigh the equities afresh.");  Gouveia, 980 F.2d at
                                                     _______



            819  ("We refuse to second-guess  the Board on  the manner in



            which  it  weights different  factors  when  arriving at  its



            ultimate decision.").   The Board's decision  was "a judgment



            call, pure and simple," id. at 819, and there is no reason to
                                    ___



            call it into question.4



                      Petitioner's  argument boils down to the contention



            that   212(c) relief  should have been granted as a matter of



            law  after he met  the burden,  imposed on  him by  Matter of
                                                                _________



            Buscemi,  19 I. & N.  Dec. 628 (1988),5  of demonstrating his
            _______



            unusual  and  outstanding equities.    This  is an  untenable



            notion.   The petitioner's demonstration of  equities in this



            type of  case is the beginning  of the story, not  the end of



            it.   See Gouveia, 980 F.2d  at 816 ("[E]ven the  presence of
                  ___ _______



            preponderant equities or equities  that in the abstract could



            qualify  as 'unusual'  or 'outstanding'  does not  compel the



            Board  to grant  [  212(c)]  relief."); Henry,  74 F.3d  at 7
                                                    _____


____________________



            4.  Contrary to Medeiros's suggestion, there is nothing amiss

            with  the   BIA's  "adopt[ion]  [of]  the   contents  of  the

            Immigration  Judge's decision."   As  this court  pointed out

            earlier this year,  "if the Board's view is that  the IJ 'got

            it right,' the law does not demand  that the Board go through

            the idle motions  of dressing  the IJ's findings  in its  own

            prose."  Chen, 87 F.3d at 7-8.
                     ____



            5.  Under  Buscemi,  an  alien  facing  deportation  who  has
                       _______

            exhibited,  inter  alia,  a   pattern  of  serious   criminal
                        _____  ____

            misconduct must meet this higher burden  to justify the grant

            of   212(c) relief.  Id.  at 633-34; see also Hazzard v. INS,
                                 ___             ___ ____ _______    ___

            951  F.2d  435,  438 (1st  Cir.  1991).    Medeiros does  not

            challenge the applicability of Buscemi to his case.
                                           _______



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("Adjustment of status is not an entitlement, but, rather, an



            extraordinary  remedy.  The  Board need not  make the anodyne



            available to  all who theoretically  qualify."); cf. Hazzard,
                                                             ___ _______



            951 F.2d at  438 ("Neither the  BIA nor this  court has  ever



            held  that  a  finding  of   'outstanding  equities'  compels



            allowance   of  a   waiver   of  excludability."   (citations



            omitted)).   The Board is  charged with balancing the alien's



            adverse factors against his equities in reaching its decision



            about  the availability of   212(c) relief.  Matter of Marin,
                                                         _______________



            16 I. & N. Dec.  581, 584 (BIA 1978).   This is exactly  what



            the Board did in this case.  Affirmed.                       


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