De Oliveira Moura v. INS

Opinion

USCA1 Opinion

August 16, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 93-2393 

MARCO ANTONIO DE OLIVEIRA MOURA,

                                     Petitioner,

                                          v.

                       IMMIGRATION AND NATURALIZATION SERVICE,

                                     Respondent.

                                 ____________________

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

                                 ____________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            John H. Ruginski, Jr. on brief for petitioner.
            _____________________
            Frank W. Hunger, Assistant Attorney General, Lisa Dornell,  Acting
            _______________                              ____________
        Assistant  Director, Office  of Immigration  Litigation, and  Alice M.
                                                                      ________
        King, Attorney, Office of Immigration Litigation, Civil Division, U.S.
        ____
        Department of Justice, on brief for respondent.

____________________

____________________

Per Curiam.   Petitioner Marco Moura (Moura)  seeks
                      __________

            judicial review  of a  decision by the  Board of  Immigration

            Appeals  (BIA) that  effectively  denied Moura  discretionary

            relief from deportation under 8 U.S.C.  1182(c).1  We  affirm

            pursuant to Loc. R. 27.1.

                                          I.

                      Moura  is  a 26-year  old  native  of Portugal  who

            entered the United States as  a lawful permanent resident  on

            June 14,  1980, when  he was  12 years old.   He  returned to

            Portugal to visit  his father on  two occasions between  1980

            and 1984.   Moura last entered  the United States on  July 5,

            1984 and has maintained lawful residence since that date.  

                      On October  22, 1987, Moura was  convicted in Rhode

            Island superior court of two  counts of breaking and entering

            a dwelling without the consent of the owner and one  count of

            entering  a building with the  intent to commit  larceny.  He

            received concurrent 36-month sentences  on each count.  Moura

            was only required to serve the first 6 months in prison.  The

____________________

            1.  8 U.S.C.  1182(c) grants the Attorney  General discretion
            to admit certain  aliens who may  otherwise be excluded  from
            admission  into  the  United  States  where  the  aliens  are
            returning  to  a  lawful  unrelinquished  domicile  of  seven
            consecutive years.   The BIA has  determined that, "a  lawful
            permanent resident  is prima  facie eligible for  relief from
            deportation under ... [8 U.S.C.  1182(c)], even though he has
            not proceeded  abroad subsequent  to the acts  which rendered
            him  deportable."   Matter  of Edwards,  Int. Dec.  3134 (BIA
                                __________________
            1990).  Thus, aliens  who maintain lawful permanent residence
            in the  United States  for seven  consecutive years may  seek
            relief from  deportation  orders  under  8  U.S.C.   1182(c).
            Lozada v. I.N.S., 857 F.2d 10, 11 n.1 (1st Cir. 1988).       
            ______    ______

remaining  terms  were  suspended  and Moura  was  placed  on

            probation for 30 months.2 

                      On  February  24,  1988  Moura  was  charged   with

            attempted breaking and  entering, conspiracy, and  possession

            of  marijuana.   All  of  these  offenses were  committed  on

            September 18, 1987, i.e., while the charges that  resulted in

            his  October 22, 1987 convictions  were still pending.  Moura

            was  convicted  of  these  additional charges  on  April  21,

            1988.3    One month later, the Immigration and Naturalization

            Service (INS) commenced deportation proceedings by filing  an

            order to show cause (OSC) why Moura should not be deported as

            an  alien convicted  of  two crimes  of  moral turpitude  not

            arising out  of a single scheme of criminal conduct.  The OSC

            was based on two of Moura's October 22, 1987 convictions.

                      On August  1, 1988, a deportation  hearing was held

            at which  the INS  amended its OSC  to charge that  Moura was

            deportable as an  alien who  had committed a  crime of  moral

            turpitude  within five  years  of entry  and  had received  a

            sentence  of at least one year and  had also violated the law

            relating to the illegal possession of marijuana.  The charges

            were  based  on  Moura's  October  22,  1987  conviction  for

____________________

            2.  Moura testified  that  he  was  first  incarcerated  from
            roughly October 1987 to March 1988.

3.  Moura received suspended sentences and probation terms on
            each of these counts that were to run concurrent with the 36-
            month sentences that had been previously imposed.  

                                         -3-

breaking and entering with  the intent to commit  larceny and

            his April  21, 1988  conviction for possession  of marijuana.

            See 8  U.S.C.  1251(a)(4),  1251(a)(11)(1988).4   Moura,  who
            ___

            was   represented  by  counsel,  conceded  deportability  and

            expressed his intent to file an application for discretionary

            relief  under  8  U.S.C.   1182(c).   The  Immigration  Judge

            ordered Moura to  file his application  by September 1,  1988

            and scheduled a waiver hearing for October 5, 1988.

                      On  August  9,  1988,  eight  days   after  Moura's

            deportation  hearing,  Moura  was  arrested  for  his  second

            possession  of marijuana offense.   (R. 247-48).   He married

            one  April Akstin,  a United  States citizen,  on August  29,

            1988.  (R.   278).    Shortly  thereafter   Moura  filed  his

            application for discretionary relief from deportation.  

                      On  October  31,  1988,  Moura   was  arrested  for

            breaking and entering with the intent to commit larceny.  (R.

            137, 233, 239).  He failed to appear at his arraignment and a

            bench warrant issued for  his arrest.   (R. 235).  Moura  was

            arrested on December  20, 1988  at the  Immigration Court  in

            Boston  when   he  appeared   for  another  hearing   in  his

            deportation    proceedings.        The   Immigration    Judge

            administratively closed the proceedings, noting that the case

____________________

            4.  8  U.S.C.  1251(a)(4) was  recodified by  the Immigration
            Act  of 1990  as  8 U.S.C.   1251(a)(2)(A)(i).   Similarly, 8
            U.S.C.     1251(a)(11)   was    recodified   as    8   U.S.C.
             1251(a)(2)(B)(i). See  Pub.L.No. 101-649 (1990). 
                               ___

                                         -4-

could be  recalendared after Moura was  released. (R. 50-53).

            On January  9,  1989,  Moura  was  convicted  of  his  second

            possession  of marijuana  offense  and the  October 31,  1988

            breaking and entering charge.   He was sentenced to  8 years'

            imprisonment, of which the first 2  and 1/2 years were to  be

            served in prison.  The remaining term was suspended and Moura

            was  placed on  probation for  5  and 1/2  years.   Moura was

            incarcerated from  approximately  December 23,  1988  through

            December, 1990.5  

                      Shortly   after   Moura's   release  from   prison,

            deportation proceedings  were  reopened.6    Moura  filed  an

            updated  application for  relief  from  deportation.    Three

            separate hearings  were held between March  1992 and December

            28, 1992,  at which  Moura, his  mother, and  his girlfriend,

            testified.7   On  December  28, 1992,  the Immigration  Judge

            issued a decision which  found that Moura's deportability had

            been  established by  clear  and convincing  evidence  (i.e.,

            Moura's  concessions)  and  denied  Moura's  application  for

____________________

            5.  Moura's first son  was born  while Moura  was in  prison.
            The mother divorced Moura on May 30, 1990. (R. 277).

            6.  A deportation  hearing was  convened on January  9, 1991,
            which  resulted in  a  continuance.   Moura was  subsequently
            directed to  file an updated application  for a discretionary
            waiver.   He failed to do  so and his  application was deemed
            abandoned.  Moura was ordered deported on April 19, 1991. His
            attorney filed a motion to reopen the deportation proceeding,
            which was allowed on October 16, 1991.  

            7.  Moura's  girlfriend  gave  birth  to his  second  son  on
            October 30, 1992. (R. 221). 

                                         -5-

discretionary relief.   Moura appealed  through his  counsel,

            who specifically indicated  in the notice of appeal  that she

            intended  to file  a brief.   On  November 5,  1993, the  BIA

            issued a  per curiam  decision that affirmed  the Immigration

            Judge.   Although  the  BIA noted  that  Moura's counsel  had

            failed  to  file  a brief,  it  reviewed  the  record in  its

            entirety and  found that  the Immigration Judge  had properly

            weighed all relevant factors in  denying Moura's application.

            In view of this finding and  the fact that Moura did not show

            any meritorious reasons for  his appeal, the BIA  adopted the

            Immigration  Judge's decision as  its own.   Moura then filed

            this timely petition for judicial review.

                                         II.

                      In determining  whether a  resident alien  merits a

            waiver of deportation  under 8  U.S.C.  1182(c),  immigration

            officials  "must  balance  the  'social  and humane'  factors

            supporting  the application against  adverse factors favoring

            deportation."  Gouveia v. I.N.S., 980 F.2d 814, 816 (1st Cir.
                           _______    ______

            1992).  Factors which may support a waiver include:

                      (1) family ties within the United States;
                      (2) residence of long duration, particularly  
                          when begun at an early age;
                      (3) evidence of hardship to family members  
                          should deportation occur;
                      (4) military service;
                      (5) a steady employment history;
                      (6)  the existence  of  property  or  business
                 ties;
                      (7) community service;
                      (8) proof of genuine rehabilitation if the    
                          alien has a criminal record;

-6-

(9) any other evidence tending to show the    
                          petitioner's good character.

            Gouveia, 980 F.2d at  816; Matter of Edwards, Int.  Dec. 3134
            _______                    _________________

            (BIA 1990); Matter of Marin, 16 I. & N. Dec. 581, 584-85 (BIA
                        _______________

            1978).  Adverse factors include:

                      (1) the nature and underlying circumstances of
                          the ground(s) for exclusion;
                      (2) the presence of additional significant    
                          violations of United States immigration   
                          laws;
                      (3) the existence of a criminal record and its
                          nature, recency and seriousness; and
                      (4) any other evidence indicative of the      
                          alien's bad character or undesirability as
                          a permanent resident.

            Matter of Marin, id. at 584.  Each case must be judged on its
            _______________  ___

            own  merits and  the alien  seeking the  discretionary waiver

            bears the  burden of proof.  Id.; Hazzard v. I.N.S., 951 F.2d
                                         ___  _______    ______

            435, 438 (1st Cir. 1991).

                      The  record discloses  that Moura  has continuously

            resided in this  country for the past  10 years and  that his

            lawful permanent residence status began at a relatively early

            age  (12).   His mother  and two  children are  United States

            citizens, but there was  no evidence that Moura's deportation

            would result  in any  particular hardship to  them.   Moura's

            mother is married and  does not rely on her  son for economic

            support.  At the  time of the deportation hearings  Moura was

            not  paying child  support  for his  first  son, although  he

            repeatedly indicated that court proceedings might result in a

            support  order.  And while  Moura resided with his girlfriend

-7-

and contributed to support her and their child, they were not

            married at the  time of the deportation hearings  nor holding

            themselves out as husband and wife.8  

                      Moura  concedes  that  his  employment  history  of

            working  for others is sporadic.    Between  his release from

            prison  in 1990 and the March 3, 1992 deportation hearing, he

            had  not held a steady job.   Between 1985 and 1987, prior to

            his  first incarceration, he held  brief jobs as  a floor boy

            and laborer, earning a maximum of a few  hundred dollars.  At

            his March  3, 1992 deportation hearing,  Moura testified that

            he was working under the table. (R. 158).  He later started a

            painting and roofing business with a friend.  By  the time of

            his final  hearing he had several contracts for work.  He had

            never filed tax  returns.  (R. 153, 223).   Moura enrolled in

            an auto  body technician training  program in March  1992 and

            expected to graduate in October 1993. (R. 196, 219-220).  

                      Against  these  factors   stood  Moura's   criminal

            history, which  began as a juvenile.   As a result  of a plea

            agreement,  several juvenile  offenses were  dropped  so that

            Moura could go to live  with his father in Portugal and  have

            his  father "straighten ... [him]  out."  (R.  96-97).  Moura

            began using marijuana  when he was  fifteen and graduated  to

            cocaine  by the  time  he was  seventeen.   He  developed  an

____________________

            8.  Moura's girlfriend testified that  they expected to marry
            but had not set a date because they were awaiting the outcome
            of the deportation hearings. (R. 210-11).

                                         -8-

addiction and supported his habit by breaking into houses and

            trading  stolen goods for cocaine.   R. (155-57).   After his

            first conviction on October 22, 1987, Moura served six months

            in  prison, where he incurred 3 or 4 disciplinary reports for

            fighting  and smoking.  (R.  102-03, 117).   He committed the

            offenses which  culminated in  his April 21,  1988 conviction

            while the  initial breaking  and entering charges  were still

            pending.   Moura was  arrested for  his second  possession of

            marijuana offense and his  final breaking and entering charge

            while  he was on probation.    During  his last incarceration

            Moura  received additional disciplinary  reports for fighting

            and using marijuana.   And while Moura has not  been arrested

            for a  felony since his last conviction, he was fined for two

            misdemeanors (disorderly conduct and driving with a suspended

            license) in April, 1991 and January, 1992.  (R. 229-30).     

The Immigration  Judge fully considered  all of the

            aforementioned factors  and ruled that,  in view of  the fact

            that  Moura  had been  convicted  of  several serious  crimes

            resulting from an addiction to cocaine, Moura was required to

            show  unusual  or  outstanding  equities in  order  to  merit

            discretionary  relief.9   He  then concluded  that Moura  had

____________________

            9.  A  showing  of unusual  or  outstanding  equities may  be
            required where the alien  has been convicted of  a succession
            of  criminal  acts  which  establish  a  pattern  of  serious
            criminal  misconduct, whether  or  not those  crimes involved
            controlled  substances.  However,  such a  showing  does  not

                                         -9-

established outstanding equities, but as  the adverse factors

            far  outweighed the social  and humane  considerations, Moura

            did not deserve  a waiver  of deportation.   The BIA  adopted

            this decision.

                      Moura argues  that the decisions of the Immigration

            Judge   and  the  BIA  constitute  error   and  an  abuse  of

            discretion.   He  maintains  that the  factors which  favored

            granting  him  discretionary  relief  clearly   outweigh  the

            adverse  factors, stressing  that  all of  his felonies  were

            committed during a  3-year period  and that he  has not  been

            arrested for a felony since 1989.  

                      We  review  waiver   decisions  only  to  determine

            whether the BIA "acted arbitrarily or capriciously, or abused

            its discretion."  White v. I.N.S., 17 F.3d 475, 478 (1st Cir.
                              _____    ______

            1994).  We must uphold the BIA unless its decision "'was made

            without  a rational  explanation, inexplicably  departed from

            established policies, or rested on an impermissible  basis.'"

            Id. (citation  omitted).   Moura does  not  contend that  the
            ___

            BIA's decision departed from  established policies or  rested

            on  an impermissible  basis.   He  says that  the Immigration

            Judge committed a clear error  in concluding that the adverse

            factors outweighed  the favorable  ones.  We  have repeatedly

            rejected similar arguments.   See, e.g., White  v. I.N.S., 17
                                          ___  ____  _____     ______

____________________

            require  the INS to grant a waiver of deportation. See Matter
                                                               ___ ______
            of Edwards, supra.  
            __________  _____

                                         -10-

F.3d  475, 478  n.4  (1st Cir.  1984)(complaints directed  to

            relative weight given favorable and unfavorable  factors held

            without merit);  Martinez v. I.N.S.,  970 F.2d 973,  975 (1st
                             ________    ______

            Cir.  1992)(same).   We see  no reason  to disturb  the BIA's

            decision  on this  record. Moura  has a  significant criminal

            record,  marked by repeated thefts and drug use.  Neither his

            employment  record nor  his family  ties appear  particularly

            strong.10   We thus  agree that  Moura failed  to demonstrate

            that he merits discretionary relief.

                      Moura  also  contends   that  his  former   counsel

            rendered  him ineffective  assistance  by failing  to file  a

            brief with the BIA.   While there is no  constitutional right

            to counsel in deportation proceedings, aliens are entitled to

            due process.   Lozada v.  I.N.S., 857  F.2d 10, 13  (1st Cir.
                           ______     ______

            1988).   "Ineffective assistance of counsel  in a deportation

            proceeding is a denial of due process only 'if the proceeding

            was so fundamentally unfair that the alien was prevented from

            reasonably  presenting his case.'"  Ramirez-Durazo v. I.N.S.,
                                                ______________    ______

            794 F.2d 491, 499-500 (9th Cir. 1986)(citation omitted).  "In

            due process  challenges, there  must always be  a showing  of

            prejudice."   Colindres-Aguilar v. I.N.S., 819  F.2d 259, 261
                          _________________    ______

            (9th  Cir. 1987).  See also Mohsseni Behbahani v. I.N.S., 796
                               ___ ____ __________________    ______

____________________

            10.  To  be sure, Moura appears to have made a genuine effort
            to remain  self-employed  and  out  of jail  since  his  last
            incarceration.   But  Moura's  attempt at  rehabilitation has
            been short-lived compared to his criminal history. 

                                         -11-

F.2d  249,  251   (9th  Cir.  1986)  (rejecting   ineffective

            assistance claim  where no prejudice shown);  Figeroa v. U.S.
                                                          _______    ____

            I.N.S., 886 F.2d 76,  78-81 (4th Cir. 1989); Mantell  v. U.S.
            ______                                       _______     ____

            Department  of   Justice,  798   F.2d  124,  128   (5th  Cir.
            ________________________

            1986)(same).  

                      Where "the  BIA [has] considered the  merits of the

            case  and fully  reviewed  the record...[and]  [t]here is  no

            indication that anything in a  brief could have affected  the

            final result[,]" the  failure to  file a brief  with the  BIA

            does  not constitute  a  violation of  due process.  Ramirez-
                                                                 ________

            Durazo, 794 F.2d at 501.  We think that this language applies
            ______

            fully in the present case.  The Immigration Judge  in his own

            decision adequately set forth  the pertinent circumstances in

            a  decision  that  is  nineteen pages  in  length  and  deals

            extensively with  the underlying  facts and the  reasoning of

            the Immigration  Judge.   Given  the  rather  straightforward

            standards to be applied,  a review by the BIA on  this record

            is a straightforward  task and  there is no  reason to  think

            that the failure to  restate the facts or argue about them in

            a  brief to the BIA  affected the outcome.   Accordingly, the

            petition for  review is  denied and  dismissed and  the BIA's
                                     ______      _________

            order is affirmed.
                     ________

-12-