Feng Chen v. INS

• Court: Court of Appeals for the First Circuit
• Decided: June 20, 1996
• Docket: 95-2309
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT


_________________________


No. 95-2309


BING FENG CHEN,



                                     Petitioner,



                                          v.



                       IMMIGRATION AND NATURALIZATION SERVICE,



                                     Respondent.



                              _________________________


PETITION FOR REVIEW OF AN ORDER OF



                           THE BOARD OF IMMIGRATION APPEALS



                              _________________________



                                        Before



                                Selya, Cyr and Boudin,



                                   Circuit Judges.
                                   ______________



                              _________________________



               Carlos Magaletta, with whom Magaletta & Associates, P.C. was
               ________________            ____________________________

          on brief, for petitioner.

               Joseph F. Ciolino, Office of  Immigration Litigation, United
               _________________

          States Dep't  of Justice, with  whom Frank  W. Hunger,  Assistant
                                               ________________

          Attorney  General,  and  David  M.  McConnell,  Acting  Assistant
                                   ____________________

          Director, Office  of Immigration  Litigation, were on  brief, for

          respondent.



                              _________________________


June 20, 1996

                              _________________________



SELYA, Circuit  Judge.   Petitioner, Bing Feng  Chen, a
                    SELYA, Circuit  Judge.
                           ______________



          native  and citizen  of  the People's  Republic  of China,  seeks



          judicial review of an  order of the Board of  Immigration Appeals



          (the Board) directing his deportation and, concomitantly, denying



          his  request  for  a  waiver  of  excludability.   Discerning  no



          cognizable error in the  administrative proceedings, we leave the



          Board's order intact.



                                          I
                                          I



                    Petitioner,  then twenty-three  years old,  entered the



          United States as a  lawful permanent resident in 1984  along with



          his parents and his brother.   The family settled in Boston.   In



          1987, California  authorities charged petitioner  with robbery in



          the second  degree and  false imprisonment.   The record  reveals



          that  petitioner and two  accomplices undertook to  rob a jewelry



          store.   Petitioner  brandished  a firearm  (a  fully loaded  .38



          calibre  handgun)   during  the  robbery,  holding   the  store's



          employees and  a half-dozen customers  at bay.  The  value of the



          property taken exceeded  $25,000.  Petitioner pled  guilty to the



          charges and the court sentenced him to five years'  imprisonment.



          He  served more than half the sentence (including credit for time



          spent in pretrial detention) before obtaining a parole.



                    On  May 27,  1992, the  Immigration and  Naturalization



          Service  (INS) took steps to deport petitioner because he had (a)



          committed a  crime involving moral turpitude within five years of



          his  lawful  entry into  the  United States,  (b)  been convicted



          thereof  by  a court  of  competent  jurisdiction,  and (c)  been


2



incarcerated on account of that conviction for a period in excess



          of one year.  See  8 U.S.C.   1251(a)(2)(A)(i).  At  a subsequent
                        ___



          hearing on  a show-cause order,  an Immigration Judge  (IJ) found



          petitioner  subject to  deportation and,  inter alia,  denied his
                                                    _____ ____



          application for a waiver of excludability under section 212(c) of



          the  Immigration  and  Nationality   Act,  8  U.S.C.     1182(c).



          Petitioner  prosecuted  an administrative  appeal.    In a  terse



          opinion dated November 13, 1995, the Board denied relief.  Though



          conceding deportability, petitioner now  seeks judicial review of



          the denial of the waiver.



                                          II
                                          II



                                          A
                                          A



                    In his  own words, petitioner's first  argument is that



          the Board deprived him of due process by  "fail[ing] to state the



          standard  of review it used in reviewing the decision of the IJ."



          Whatever  constitutional  force this  standard-of-review argument



          once may have generated, events have passed it by.



                    The genesis of the argument can be traced to an opinion



          of the Court of  Appeals for the Seventh Circuit,  Ortiz-Salas v.
                                                             ___________



          INS, 992 F.2d 105 (7th Cir. 1993), in which Judge Posner, writing
          ___



          for the panel, noted the Board's habitual silence  concerning the



          standard that it  used when reviewing a discretionary decision of



          an IJ (such as a decision to grant or deny a waiver under section



          212(c)).  See id. at 108.  In response to the Board's claim  that
                    ___ ___



          it  had  a right  to inscrutability  and  need not  advertise its



          standard of review, Judge Posner wrote:


3



That won't do.   It is  an undue hardship  to

                    require the alien to guess at the standard of

                    review that will be applied to his appeal . .

                    . .  [a]nd it is irresponsible  for the Board

                    to  fail  to define  its relationship  to the

                    immigration judges.



          Id. at 107.
          ___



                    If Ortiz-Salas marked  the end of  the line, this  case
                       ___________



          might present difficulties.  But the occurrence of an intervening



          event removes the issue  from the case.   On September 13,  1994,



          the  Board decided Matter of  Burbano, Interim Decision 3229 (BIA
                             __________________



          1994),  in which it heeded  the message of  the Ortiz-Salas court
                                                          ___________



          and made clear that whenever "the  Board engages in a review of a



          discretionary determination  by an immigration judge,"  the Board



          relies  upon  its  "own  independent  judgment  in  deciding  the



          ultimate  disposition of  the case."   Id.,  slip op.  at 2.   To
                                                 ___



          eliminate all doubt, the  Board added that it "do[es]  not employ



          an  abuse of  discretion  standard when  reviewing  discretionary



          determinations of immigration judges."  Id. at 3. Burbano    thus
                                                  ___       _______



          fills the gap that troubled the Ortiz-Salas court.
                                          ___________



                    The opinion in Burbano antedated the Board's opinion in
                                   _______



          this case by well over a year.  The Board's express invocation of



          Burbano (via  citation to it)  in the text  of the opinion  below
          _______



          makes manifest  the untenability of the  petitioner's claim under



          the  circumstances  now  extant.    Petitioner,  to  his  credit,



          acknowledges  as  much in  his  reply brief.    Consequently, the



          argument is by the boards.



                                          B
                                          B



                    Petitioner's  next asseveration relates to the adequacy



                                          4



of the Board's  findings.  It is true,  as petitioner points out,



          that for the most part  the Board did not write its  own analysis



          of   the   positive  and   negative   factors   undergirding  its



          determination to  deny the  requested waiver.   It did,  however,



          make  clear that it had  reviewed the record,  the IJ's decision,



          and petitioner's  contentions on  appeal, and it  concluded that,



          with one exception,1  the IJ  "gave proper  consideration to  the



          discretionary  factors  concerning  [petitioner's]   request  for



          section 212(c) relief."   The Board also  indicated its agreement



          that  petitioner  had  not  demonstrated equities  sufficient  to



          overbalance  the significant adverse  factors associated with his



          involvement  in the  armed robbery,  and it  opted to  affirm the



          denial of the  waiver "for  the reasons specified  in [the  IJ's]



          decision."



                    Petitioner complains that the Board's opinion is flawed



          because  it is conclusory in nature.   He says in effect that the



          Board, when  exercising independent  review, must find  the facts



          afresh,  and that  it neglected  to do  so here.   We  think that



          petitioner overstates the Board's obligation.



                    As a  general  proposition,  if  a  reviewing  tribunal



          decides that the facts  and evaluative judgments prescinding from



          them have been  adequately confronted and correctly resolved by a

                              
          ____________________



               1The Board disclaimed any reliance on hypothetical scenarios

          set forth by  the IJ in his decision.   The Board explained that,

          though  it agreed  with  the IJ  that  the petitioner's  criminal

          activity,  namely, his robbery of  a store with  a loaded weapon,

          was  "particularly  disturbing," nonetheless,  "the reprehensible

          nature  of  this crime  speaks for  itself,  without any  need to

          speculate as to the feelings of the victims involved."



                                          5



trial  judge or hearing officer, then the tribunal is free simply



          to adopt those findings   as long as its opinion or order clearly



          indicates that it gave individualized attention to the  case and,



          upon  reflection, elected to adopt  the trier's words rather then



          to write anew.  See  Alaelua v. INS, 45 F.3d 1379, 1381 (9th Cir.
                          ___  _______    ___



          1995);  Castaneda-Suarez v.  INS,  993 F.2d  142,  146 (7th  Cir.
                  ________________     ___



          1993);  cf. In  re San Juan  Dupont Plaza Hotel  Fire Litig., 989
                  ___ ________________________________________________



          F.2d 36, 38 (1st Cir.  1993) ("Where, as here, a trial  court has



          produced a  first-rate work product, a  reviewing tribunal should



          hesitate  to  wax  longiloquent  simply  to  hear  its  own words



          resonate.").



                    These principles hold true in an administrative  appeal



          of this genre.  To be sure, 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.  See
                                                                        ___



          Alaelua, 45 F.3d at 1382; Martinez v. INS, 970 F.2d 973, 974 (1st
          _______                   ________    ___



          Cir. 1992).  And, moreover, the Board's opinion must reflect that



          it has carried  out these obligations    but the  Board need  not



          write  a long  essay merely  to  prove its  mettle.   Cf.,  e.g.,
                                                                ___   ____



          Martinez, 970 F.2d  at 976  (concluding that the  Board need  not
          ________



          "address  specifically each  claim  the petitioner  made or  each



          piece  of evidence  the  petitioner  presented").    To  use  the



          vernacular,  if the Board's  view is that the  IJ "got it right,"



          the  law does  not  demand that  the  Board go  through  the idle


6



motions of  dressing the  IJ's findings in  its own  prose.2   In



          short,  de  novo review    and  what  the Board  chooses  to call



          "independent review" is neither more nor less than de novo review



            does not require the Board to reinvent the wheel.



                    On  this basis, we join eight of our sister circuits in



          ruling  that the Board need not  write at length merely to repeat



          the  IJ's  findings  of fact  and  his  reasons  for denying  the



          requested  relief,  but,  rather,  having   given  individualized



          consideration  to a  particular case,  may simply  state that  it



          affirms  the  IJ's decision  for the  reasons  set forth  in that



          decision.3  See  Prado-Gonzalez v.  INS, 75 F.3d  631, 632  (11th
                      ___  ______________     ___



          Cir. 1996); Gomez-Mejia v. INS, 56 F.3d 700, 702 (5th Cir. 1995);
                      ___________    ___



          Urukov  v. INS, 55 F.3d 222, 227-28  (7th Cir. 1995); Alaelua, 45
          ______     ___                                        _______

                              
          ____________________



               2In his reply brief, petitioner cites two precedents that he

          claims  repudiate this view.  His reliance is mislaid.  One case,

          Perez v.  INS, 643 F.2d 640 (9th Cir.) (per curiam), op. am., 665
          _____     ___                                        ___ ___

          F.2d 269 (9th Cir.  1981), cert. dismissed, 459 U.S.  983 (1982),
                                     _____ _________

          was not a  case in which the Board adopted the findings of an IJ,

          but, rather, a case in  which the Board, in violation of  its own
                                                   ________________________

          regulations, neglected to  indicate on the record "the factors it
          ___________

          considered in concluding  that [the alien] failed  to establish a

          prima  facie  case  of  extreme   hardship  [under  8  U.S.C.    
          _____  _____

          1254(a)(1)]," thereby  frustrating judicial review.   Id. at 641.
                                                                ___

          In  the second case,  Anderson v. McElroy, 953  F.2d 803 (2d Cir.
                                ________    _______

          1992),  the Court  found an  abuse of  discretion in  the Board's

          summary refusal to stay deportation pending the disposition of an

          alien's motion to reopen, notwithstanding the INS' acknowledgment

          of a significant change in circumstances and its request that the

          Board  vacate the  deportation  decision and  remand for  further

          proceedings.  See id. at 805-06.  Neither case has any bearing on
                        ___ ___

          the issue at hand.



               3Where,  as   here,  the  Board  adopts   the  findings  and

          conclusions of the  IJ, the IJ's rescript serves de  facto as the

          Board's articulation of its ratio decidendi.  For that reason, we
                                      _____ _________

          henceforth  refer to  the  findings and  conclusions  of the  IJ,

          adopted by  the Board, as if  the Board had authored  them in the

          first instance.



                                          7



F.3d  at 1382-83; Maashio  v. INS, 45  F.3d 1235, 1238  (8th Cir.
                            _______     ___



          1995);  Gandarillas-Zambrana  v. BIA,  44  F.3d  1251, 1255  (4th
                  ____________________     ___



          Cir.), cert. denied, 116 S. Ct. 49 (1995); Panrit v. INS, 19 F.3d
                 _____ ______                        ______    ___



          544, 546 (10th Cir.  1994); Arango-Aradondo v. INS, 13  F.3d 610,
                                      _______________    ___



          613  (2d Cir. 1994); see  also De Leon v.  INS, 547 F.2d 142, 149
                               ___  ____ _______     ___



          (1st  Cir. 1976)  (applying this  principle sub  silentio), cert.
                                                      ___  ________   _____



          denied, 434 U.S. 841 (1977).
          ______



                    Here, the Board's individualized  attention to the case



          is apparent.  See, e.g., supra  note 1.  We hold, therefore, that
                        ___  ____  _____



          the  Board acted  within its proper  purview when  it adjudicated



          petitioner's case  and resolved the  appeal by adopting  the IJ's



          findings and conclusions.



                                          C
                                          C



                    As our journey winds down, we reach  the bedrock issue:



          the  supportability  of  the  Board's denial  of  section  212(c)



          relief.  The fact  that the Board's findings and  conclusions are



          adopted  rather than  original does  not  affect our  standard of



          review.  As in any  other section 212(c) case, we  need determine



          only whether  the decision is arbitrary, capricious,  or an abuse



          of discretion.   See generally Gouveia v.  INS, 980 F.2d 814, 817
                           ___ _________ _______     ___



          (1st Cir. 1992) (elucidating standard of review).  



                    Waivers  of  deportation  are not  profligately  to  be



          granted.    In deciding  whether  to  exercise its  discretionary



          authority,  the  Board  "must  balance the  `social  and  humane'



          factors   supporting  the  application  against  adverse  factors



          favoring  deportation."   Id.  at  816.    When  the  ground  for
                                    ___


8



deportability  is the  alien's commission of  a serious  crime, a



          high hurdle blocks the  path to section 212(c)  relief.  In  such



          circumstances  "it is  incumbent  upon a  petitioner not  only to



          demonstrate  that  favorable  factors  preponderate  but also  to



          present `unusual or outstanding equities'" in order  to justify a



          waiver.   Id.; accord Martinez, 970  F.2d at 976; Hazzard v. INS,
                    ___  ______ ________                    _______    ___



          951 F.2d  435, 438 (1st Cir.  1991).  The armed  robbery of which



          petitioner stands  convicted indubitably  qualifies as  a serious



          crime within this rubric.



                    In this  instance, the Board examined  all the relevant



          factors,  applied   the   appropriate  standard,   decided   that



          petitioner's proffer lacked persuasive force, and concluded  that



          petitioner had failed  to make out a sufficiently convincing case



          for  an affirmative exercise of  discretion.  On  this record, we



          have no  warrant to  second-guess the  Board's  conclusion.   See
                                                                        ___



          Martinez, 970 F.2d at 974 (explaining that rejection of a section
          ________



          212(c)  waiver request will be upheld "unless it was made without



          a  rational explanation,  inexplicably departed  from established



          policies,  or  rested  on  an  impermissible  basis")   (citation



          omitted).



                    Of  course, the credit side of the ledger is not empty.



          Petitioner  had a  decade of  lawful permanent  residence, family



          ties in this country, part-ownership in a house, some involvement



          with  community  service, and  a  chiaroscuro  record of  gainful



          employment.    At  bottom,  however,  these   are  garden-variety



          equities; they simply do  not rise to a level  that would warrant


9



the appellation "unusual" or "outstanding."  See, e.g., Henry  v.
                                                       ___  ____  _____



          INS, 74  F.3d  1,  7  (1st  Cir. 1996)  (finding  no  unusual  or
          ___



          outstanding  equities  on  comparable showing  in  adjustment-of-



          status case).



                    Petitioner also  made a  modest showing of  hardship to



          family  members  should  he be  deported,  but  the  hardships he



          envisions are not severe.  Petitioner's  relatives in this county



          are in good health and  not dependent upon him for support.   His



          plans  to  start  a  business with  his  brother  are  embryonic.



          Finally, we attach little weight to the hardships that petitioner



          personally may experience upon  his repatriation to China because



          they are  of the sort  that would be  common to almost  any alien



          returning  to a less prosperous  land after living  in the United



          States.  See Ramirez-Durazo v.  INS, 794 F.2d 491, 498 (9th  Cir.
                   ___ ______________     ___



          1986).



                    The  short of it is that, as the Board determined after



          mulling  all   the   relevant  factors,   petitioner's   equities



          (including his litany of potential hardships) do not outweigh the



          serious adverse factors that  are present in his case.4   Because



          the   record  reflects   a  plausible   basis  for   the  Board's



          determination, we  are constrained to  find that the  Board acted



          well  within its broad discretionary  powers in refusing to grant



          the waiver.  See Gouveia,  980 F.2d at 818; Hazzard, 951  F.2d at
                       ___ _______                    _______



                              
          ____________________



               4The armed robbery itself stands as the most serious adverse

          factor.  In addition, the Board supportably found that petitioner

          showed no  remorse for his actions  and that he had  made no real

          progress toward rehabilitation.



                                          10



438.   As we recently wrote  in an analogous case,  "[t]his was a



          judgment call,  pure and simple," and,  consequently, a reviewing



          court  must defer to  the Board's notion  of where  to strike the



          proper balance.   Gouveia, 980  F.2d at 819;  see also Henry,  74
                            _______                     ___ ____ _____



          F.3d  at 7 (counselling  that, in  such purlieus,  "[a] reviewing



          court may not reweigh the equities afresh").


III
                                         III



                    We need go  no further.5   Waiver of  deportation is  a



          discretionary remedy.  In the absence of  either a mistake of law



          or a palpable abuse  of discretion    neither of which sully  the



          pages of this record   the Board's judgment must prevail.


The petition for review is denied and dismissed.
                    The petition for review is denied and dismissed.
                    _______________________________________________


____________________



               5Petitioner's argument that the Board applied  a per se rule

             in  effect holding  that  the crime  was  so  heinous that  no

          combination of  positive factors  could have outweighed  it    is

          belied by the record and does not require further comment.



                                          11