Flores v. Immigration & Naturalization Service

45 F. App'x 709

Opinion

MEMORANDUM

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The Board of Immigration Appeals did not abuse its discretion in denying Flores’s application for a discretionary deportation waiver under 8 U.S.C. § 1251(a)(1)(H). Far from ignoring considerations favorable to the petitioner, cf. Mattis v. INS, 774 F.2d 965, 968 (9th Cir.1985), the Board, in its March 10, 2000, decision, took note of Flores’s arguments, as well as the new supporting evidence she offered — including “declarations by [Flores], her husband, and an assistant public defender, a psychologist’s letter, and a medical diagnosis.”

Although the Board concluded that the waiver should nonetheless be denied, it did not arrive at this conclusion in a “summary or conclusory” fashion. Id. at 967. Instead, it provided reasons for rejecting Flores’s hardship argument: The marriage occurred after deportation proceedings had already been commenced against Flores, and Flores’s husband stated that he would accompany Flores to Taiwan if she was deported. Furthermore, the Board explained that even if Flores’s hardship argument and the alleged mitigating circumstances surrounding her welfare fraud conviction were credited, they would not overcome her “significant adverse history of disregarding the laws of this country, both immigration and otherwise.” Because the decision is not “arbitrary], irrational[ ], or contrary to law,” Eide-Kahayon v. INS, 86 F.3d 147, 149 (9th Cir.1996) (per curiam), it will not be disturbed.

We reject Flores’s argument that, under Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), her American husband’s interest in the marital relationship requires the Board to hold a hearing before discretionary relief is denied. Flores can point to no case where a court has applied the Mathews framework in this context. Even assuming that Mathews applies, the balance of factors does not weigh in favor of yet another hearing.

First, the “private interest” is weak. Id. at 335, 96 S.Ct. 893. Flores was determined to be a deportable alien through an earlier process that included a fair hearing. The current petition concerns only the Board’s exercise of its discretion to deny a waiver. A deportable alien does not have a recognized interest in remaining in the country or delaying her deportation through reopening of deportation proceedings. See, e.g., INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Similarly, the spouse who married an alien knowing that deportation might be imminent can claim no cognizable interest in lengthening her stay once the alien is found deportable.

Second, the “probable value ... of additional or substitute procedural safeguards” is minimal. Mathews, 424 U.S. at 335, 96 S.Ct. 893. The facts — most notably, the initial sham marriage and the welfare fraud conviction — are essentially undisputed. The outcome boils down to a discretionary decision in balancing the favorable and unfavorable factors, a task entrusted by law to the Board.

Finally, the government has a strong interest in avoiding further delays in Flores’s deportation. See id. “Motions for reopening of immigration proceedings are disfavored [because] ... every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” Doherty, 502 U.S. at 323, 112 S.Ct. 719 (citation omitted).

Because the Mathews factors weigh decidedly against Flores, due process does not require a hearing on Flores’s waiver application.

PETITION DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.