USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 95-1679
WARREN HENRY,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
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Before
Torruella, Chief Judge,
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Aldrich, Senior Circuit Judge,
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and Selya, Circuit Judge.
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Stanley H. Wallenstein for petitioner.
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Kristen A. Giuffreda, Office of Immigration Litigation,
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United States Department of Justice, with whom Frank W. Hunger,
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Assistant Attorney General, and Ellen Sue Shapiro, Senior
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Litigation Counsel, were on brief, for respondent.
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January 16, 1996
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SELYA, Circuit Judge. Invoking 8 U.S.C. 1105a(a)
SELYA, Circuit Judge.
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(1994), petitioner Warren Henry seeks judicial review of an order
of the Board of Immigration Appeals (the Board) denying his
request for adjustment of status and directing his deportation.
We dismiss the petition.
I
I
Petitioner, a 24-year-old Jamaican national, has
resided in the United States since late 1984. His parents and
four siblings live here.1 Petitioner completed high school and
one year of college. He wed a United States citizen, but the
marriage did not last. He has a son by another woman. His son
lives in the United States, but not with petitioner and
petitioner does not support the boy on a regular basis.
Petitioner's overall work record is spotty. He currently
operates a hair-styling salon in Springfield, Massachusetts.
Petitioner is no stranger to the legal system. In May
of 1991, New York authorities charged him with assault with
intent to cause serious harm, criminal possession of a weapon,
and menacing. About three weeks thereafter, the police arrested
him for jumping the turnstiles on the New York City subway
system. Initially, he failed to respond to these charges. When
he appeared two years later doubtless prompted by his desire to
avoid looming deportation the court reduced the charges arising
out of the first incident to a single count of simple assault.
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1His parents, a brother, and a sister are United States
citizens. His other two siblings have permanent resident status.
Some relatives still live in Jamaica.
2
Petitioner pled guilty both to this reduced charge and to the
turnstile-jumping charge. The court imposed a one-year
conditional discharge in respect to the former and a fine in
respect to the latter.
Another brush with the law proved to be a catalyst for
deportation proceedings. On October 13, 1991, Springfield police
officers found petitioner (who was carrying false identification
papers) in possession of an unlicensed handgun. He pled guilty
to a weapons-possession charge on January 13, 1992, using his
pseudonym ("Richard Dave Gordon"), and spent several months in
jail. On February 4, 1992, the Immigration and Naturalization
Service (INS) instituted deportation proceedings.
During the pendency of the proceedings, petitioner had
another close encounter with the law. On December 2, 1992,
Springfield authorities charged him with assaulting a police
officer. The facts surrounding that incident are less than
pellucid. The police officer's arrest report states that he
restrained petitioner after petitioner made a threatening gesture
in response to an inquiry, and that petitioner then hit him.
Petitioner categorically denies this account, and says that he
neither threatened nor struck the officer. On the date of
petitioner's deportation hearing, the assault charge was still
pending, and the record reveals no definitive disposition
(although, at oral argument before us, petitioner's counsel
represented that the charge is now by the boards).
II
II
3
At this juncture, we temporarily shift our focus to the
statutory scheme. Petitioner's conviction on the firearms charge
rendered him deportable under section 241 of the Immigration and
Nationality Act (INA), 8 U.S.C. 1251.2 Confronted by this
statute, petitioner attempted to confess and avoid: he conceded
deportability, but sought an adjustment of status under INA
245(a), 8 U.S.C. 1255(a).3 This course was theoretically open
because, under the immigration laws, the grounds for deportation
are not congruent with those for exclusion of aliens. Thus,
petitioner's firearms conviction rendered him deportable, but not
per se excludable. Compare 8 U.S.C. 1251(a)(2)(C) with id.
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1182(a) (listing grounds for exclusion).
Generally speaking, resident aliens who are subject to
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2The statute provides in pertinent part:
Any alien who at any time after entry is
convicted under any law of purchasing,
selling, offering for sale, exchanging,
using, owning, possessing, or carrying . . .
any weapon, part, or accessory which is a
firearm or destructive device . . . in
violation of any law is deportable.
8 U.S.C. 1251(a)(2)(C) (1994).
3The statute provides in pertinent part:
The status of an alien who was inspected
and admitted or paroled into the United
States may be adjusted by the Attorney
General, in his discretion and under such
regulations as he may prescribe, to that of
an alien lawfully admitted for permanent
residence [subject to certain enumerated
conditions not relevant here].
8 U.S.C. 1255(a) (1994).
4
exclusion upon leaving and attempting to reenter the country may
apply for waivers of inadmissibility under INA 212(c), 8 U.S.C.
1182(c).4 Section 212(c) waivers are equally available to
aliens in deportation proceedings as long as the ground for
deportation is also a stated ground for exclusion. See Campos v.
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INS, 961 F.2d 309, 313 (1st Cir. 1992). But such waivers are not
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available to aliens in deportation proceedings when the ground
for deportation is not also a stated ground for exclusion. See
___
id. at 316.
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III
III
Petitioner's case falls between these stools. Lacking
the foundational prerequisite for seeking a section 212(c)
waiver, he opted to use an application for adjustment of status
under section 245(a) as an alternate vehicle. See Matter of
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Rainford, Interim Dec. No. 3191, at 6 (BIA 1992) (authorizing
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status-adjustment applications in such circumstances). The INS
acknowledges that he is eligible to be considered for adjustment
of status under section 245(a). Whether he deserves the relief
is a different story. On that score, an immigration judge (IJ)
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4The statute provides in pertinent part:
Aliens lawfully admitted for permanent
residence who temporarily proceeded abroad
voluntarily and not under an order of
deportation, and who are returning to a
lawful unrelinquished domicile of seven
consecutive years, may be admitted in the
discretion of the Attorney General without
regard to [many of the grounds for
exclusion].
8 U.S.C. 1182(c) (1994).
5
initially considered and denied petitioner's application for
adjustment of status. He explained that a section 245(a)
adjustment is a discretionary remedy; that to receive such a
benefice an otherwise deportable alien must show unusual or
outstanding equities sufficient to overbalance the negative
factor(s) on which the finding of deportability rests; and that,
in petitioner's case, the equities did not adequately
preponderate in his favor.
Petitioner appealed. See 8 C.F.R. 3.1(b)(2) (1995)
___
(providing for administrative appeals of such orders). The
Board, exercising de novo review, see Gouveia v. INS, 980 F.2d
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814, 817 (1st Cir. 1992), denied relief. In its view,
petitioner's strong points, e.g., his family ties to the United
States, his protracted residence here, and his belated efforts at
rehabilitation, did not overcome the discredit inherent in his
criminal record.
IV
IV
We do not print on a pristine page. The IJ made
extensive findings in this matter, and the Board issued a
comprehensive decision adopting many of those findings. After
careful perscrutation of the record, we discern no fatal flaw in
the Board's rationale. Thus, we uphold the denial of
petitioner's request for adjustment of status for essentially the
reasons stated by the Board, adding relatively few comments.
A.
A.
__
The decision to grant or deny an application for
6
adjustment of status is one that rests within the informed
discretion of the Attorney General, see 8 U.S.C. 1255(a), and,
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by delegation, within the informed discretion of the Board. As a
result, the ambit of judicial review is tightly circumscribed.
Courts are entitled to probe the Board's discretionary decisions
only to the extent necessary to ascertain whether the Board
misread the law or otherwise misused its discretion. See
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Martinez v. INS, 970 F.2d 973, 974 (1st Cir. 1992).
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To be sure, adjudicatory tribunals can exceed grants of
discretion even ringing grants of broad, essentially
standardless discretion in various ways. We have pointed out
that courts can abuse discretion in any of three aspects, namely,
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.
See, e.g., United States v. Roberts, 978 F.2d 17, 21 (1st Cir.
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1992); Independent Oil & Chem. Workers of Quincy, Inc. v. Procter
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& Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988). Like a
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court, so, too, an administrative adjudicative body charged with
making a discretionary decision can stray beyond the pale in any
of these three ways.
B.
B.
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Petitioner asserts that the Board abused its discretion
in all the respects that we have mentioned. We deal briefly with
7
each facet of this trifurcated assertion.
1.
1.
__
First and foremost, petitioner asseverates that the
Board improperly failed to consider all the factors favorable to
him. In particular, citing Matter of Marin, 16 I & N Dec. 581,
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584-85 (BIA 1978), a section 212(c) waiver case, he maintains
that the Board unnecessarily limited the data it considered in
assessing the equities underpinning his request for adjustment of
status.
In the section 212(c) milieu, the Board and reviewing
courts habitually refer to a stock list of factors that
potentially inform the equities attendant to a waiver.5
Petitioner asks us to transplant this list wholesale and mandate
its use in connection with status-adjustment applications under
section 245(a). This importuning reaches too far: fairly viewed,
it solicits the overruling, sub silentio, of this court's
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decision in Campos. There, we held that the Attorney General
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could rationally decide not to make section 212(c) waiver relief
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5These factors include:
(1) family ties within the United
States; (2) residence of long duration in the
United States; (3) evidence of hardship to
petitioner or petitioner's family if
deportation occurs; (4) service in the United
States Armed Forces; (5) a steady employment
history; (6) the existence of property or
business ties in this country; (7) community
service; (8) rehabilitation; and (9) any
other evidence fairly indicating petitioner's
good character.
Gouveia, 980 F.2d at 816 (citing Marin, 16 I & N Dec. at 584-85).
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8
available to aliens convicted of firearms offenses that rendered
them deportable but not automatically excludable. See Campos,
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961 F.2d at 316. In so holding, we made it crystal clear that
the section 212(c) waiver provision, 8 U.S.C. 1182(c), "could
not be utilized to waive all grounds of deportability, but only
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those grounds of deportability having a corresponding ground of
excludability . . . ." Id. at 313 (emphasis in original).
___
Petitioner today tries to bring in through the back
door the same iteration that the Campos court barred at the front
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door. His core argument is that the Board abused its discretion
by not applying the section 212(c) waiver criteria to an
adjustment of status case. Were we to accept this construct, we
would effectively require INS to afford deportable but not
necessarily excludable aliens (like petitioner) relief exactly
equivalent to that available under 8 U.S.C. 1182(c). But we
expressly declined to dictate such a result when we concluded in
Campos that the law did not make waiver of inadmissibility
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available to all deportable aliens.
We see no reason to revisit the matter. When all is
said and done, waiver of inadmissibility is an extraordinary
discretionary remedy that Congress, in enacting section 212(c),
made available primarily to assist excludable aliens who had been
long-term residents of this country. See Campos, 961 F.2d at
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316. Congress painstakingly set the limits within which the
waiver proviso is to operate. The courts have no roving writ
that enables them to refashion the legislature's handiwork and
9
stretch the statute to cover all cases in which a person might
suffer deportation as a result of his own crimes.6
In any event, the argument that petitioner advances is
largely academic in the circumstances at hand. Even in section
212(c) waiver cases, the Marin factors are only illustrative.
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They do not comprise an invariable checklist. See Hazime v. INS,
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17 F.3d 136, 140 (6th Cir.) (explaining that the Board need not
address all the Marin criteria in reaching its decision), cert.
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denied, 115 S. Ct. 331 (1994). So long as the Board gives
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adequate consideration to the equities supporting a favorable
exercise of discretion, it discharges its duty under section
212(c). See id.; see also Marin, 16 I & N Dec. at 585.
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In this instance, the administrative record makes it
plain that the Board paid satisfactory heed to the relevant
factors. It explicitly noted petitioner's length of residence,
his family ties, his tentative steps toward rehabilitation, and
the conceivable hardships (including the likely loss of his
proprietary interest in a start-up business). Petitioner offered
no evidence regarding military service or community activities.
Thus, the Board in effect considered all the pertinent Marin
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factors despite the absence of any obligation to do so.
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6We note, too, that petitioner's construct not only would
overrun the limits applicable to section 212(c) waivers, but also
would serve to create two different adjustment of status
standards: one for criminals ineligible for waiver of
inadmissibility, and another for students, temporary employees,
and the myriad of non-resident immigrants eligible for adjustment
of status. We think the Board's decision to preserve the unity
of its status-adjustment standard is eminently reasonable, and we
discern no abuse of discretion here.
10
Petitioner has no valid ground for his Marin-based complaint.
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2.
2.
__
Next, petitioner posits that the Board pondered a
factor that should have been excluded from the decisional
calculus: his 1992 arrest for allegedly assaulting a police
officer. He pegs this claim on Matter of Arreguin, Interim Dec.
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No. 3247 (BIA 1995), a case decided four days before the Board
decided Henry's appeal, and asserts that Arreguin stands for a
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black-letter rule proscribing consideration of arrest reports.
We begin with basics. The law recognizes that in an
agency as large as the INS different officials may not act
identically in every case. This lack of complete uniformity is
unavoidable after all, administrators are not automatons and
does not, in an of itself, invalidate agency action.
Nonetheless, agencies do not have carte blanche. While a certain
amount of asymmetry is lawful, see Davila-Bardales v. INS, 27
___ _______________ ___
F.3d 1, 5 (1st Cir. 1994); Puerto Rican Cement Co. v. EPA, 889
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F.2d 292, 299 (1st Cir. 1989), an agency may not "adopt[]
significantly inconsistent policies that result in the creation
of conflicting lines of precedent governing the identical
situation." Davila-Bardales, 27 F.3d at 5 (citation and internal
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quotation marks omitted).
Let us be perfectly clear: the precept counselling
avoidance of inconsistent administrative policies does not freeze
an agency's jurisprudence for all time. See, e.g., Congreso de
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Uniones Industriales de P.R. v. NLRB, 966 F.2d 36, 39 (1st Cir.
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11
1992); Shaw's Supermarkets, Inc. v. NLRB, 884 F.2d 34, 37 (1st
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Cir. 1989). The precept demands, however, that if the
"administrative agency decides to depart significantly from its
own precedent, it must confront the issue squarely and explain
why the departure is reasonable." Davila-Bardales, 27 F.3d at 4.
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In other words, administrative agencies must apply the same basic
rules to all similarly situated supplicants. An agency cannot
merely flit serendipitously from case to case, like a bee buzzing
from flower to flower, making up the rules as it goes along.
It is against this chiseled backdrop that we turn to
Arreguin. There, the Board reversed an IJ's refusal to grant a
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section 212(c) waiver to an alien convicted of playing a minor
role in a marijuana importing scheme. In denying relief, the IJ
considered a twelve-year-old arrest record on charges (later
dropped) of smuggling aliens into the United States. See
___
Arreguin, supra, at 8. While the Board sanctioned the
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admissibility of the arrest record into evidence, it explained
that, under the circumstances, it would give the record scant
weight. See id. Petitioner maintains that Arreguin establishes
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a black-letter rule gainsaying reliance on arrest records, and,
thus, that consistency of precedent requires reversal of the
instant order. We demur: the Board's decision in Arreguin did
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not require it ipso facto to disregard altogether the report of
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petitioner's 1992 arrest.
The principal problem presented by petitioner's
prohibitory proposition is Arreguin itself. The case simply does
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12
not announce the rigid rule that petitioner ascribes to it.
There, the Board approved the IJ's admission of a particularly
vulnerable arrest record into evidence, and agreed that it had
some probative value. See id. The difficulty was that, under
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the circumstances of the particular case, the IJ gave the record
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more weight than it deserved, and, concomitantly, neglected to
give full effect to many positive elements buttressing the
petitioner's case. Properly read, Arreguin implicates matters of
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degree, explaining the relative weight that should be given to
arrest records. Nothing in the opinion suggests that, when
facing a closer balance of equities, the Board might not properly
decide that a record of arrest tips the scales against the
bestowal of discretionary relief.
Nor does Arreguin represent an alteration of prior
________
precedent. The traditional rules of evidence do not apply in
immigration hearings, see, e.g., Espinoza v. INS, 45 F.3d 308,
___ ____ ________ ___
310 (9th Cir. 1995), and arrest reports historically have been
admissible in such proceedings, see Paredes-Urrestarazu v. INS,
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36 F.3d 801, 813 (9th Cir. 1994) (holding that the Board may
entertain arrest records as evidence). Moreover, while an
arrest, without more, is simply an unproven charge, the fact of
the arrest, and its attendant circumstances, often have probative
value in immigration proceedings. See, e.g., id. at 810 ("The
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fact of arrest, insofar as it bears upon whether an alien might
have engaged in underlying conduct and insofar as facts probative
of an alien's `bad character or undesirability as a permanent
13
resident' arise from the arrest itself, plainly can have
relevance" in discretionary relief). Arreguin does not purport
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to command any deviation from these venerable practices or to
prohibit the type of recourse that the Board historically has
made to arrest records.
In fine, the lesson of Arreguin is that, when the Board
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appraises the considerations on both sides of the discretionary
balance to determine whether they are in equipoise, it will
accord virtually no weight to an arrest record remote in time and
unsupported by corroborating evidence. See Arreguin, supra, at
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8. Here, the Board adumbrated that rather unremarkable lesson.
It considered the 1992 arrest report in a limited way, without
giving excessive weight to it. It was entitled to do so,
Arreguin notwithstanding.7
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3.
3.
__
In his most broad-gauged foray, petitioner maintains
that the Board drew the wrong conclusions from the factors it
considered. In this context, petitioner complains that he
demonstrated strong familial ties to the United States, long-term
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7Petitioner's reliance on Arreguin is misplaced for other
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reasons as well. For one thing, Arreguin is a section 212(c)
________
waiver case, and there is no requirement that the Board treat
section 245(a) status adjustment cases like waiver cases. For
another thing, Henry himself offered the arrest record as
evidence before the IJ, apparently as part of an attempt to
explain away the incident in question. It ill behooves him to
complain on appeal that the Board should not have paid heed to
evidence that he proffered. See Johnson v. INS, 971 F.2d 340,
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343 (9th Cir. 1992) (recognizing that the doctrine of invited
error precludes a petitioner from challenging the admissibility
of evidence she proffered at her deportation hearing).
14
residency here, and hardship in the event of deportation. These,
he continues, are the very factors the Board has required a
petitioner to demonstrate in order to make the showing of
outstanding equities necessary to overcome strong negative
factors. See Matter of Arai, 13 I & N Dec. 494, 496 (BIA 1970).
___ ______________
Petitioner's argument misapprehends both the nature of
status adjustment and the role of judicial review. 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. Indeed, the Attorney General has
cautioned that the Board's regimen in Arai "does not establish
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rigid rules which deny to immigration judges the flexibility
necessary to carry out their duty to analyze sensitively the
competing factors in each particular case." Matter of Blas, 15 I
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& N Dec. 626, 641 (Atty. Gen. 1976), aff'd, 556 F.2d 586 (9th
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Cir. 1977). Thus, status adjustment is quintessentially a matter
"of administrative discretion." Arai, 13 I & N Dec. at 496.
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Moreover, when a matter is committed by law to the
Board's sound discretion, a reviewing court plays a very
restricted role in overseeing the administrative exercise of that
discretion. So long as the Board follows its own settled
principles and provides a reasoned explanation for its decision,
judicial review is at an end. See Gouveia, 980 F.2d at 818;
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Martinez, 970 F.2d at 974.
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Of course, discretion is not to be confused with
imperiousness. When the Board rejects a request for adjustment
15
of status, it must articulate its reasons for taking that action,
and those reasons must be plausible. Nonetheless, the existence
of favorable information under each of the three Arai headings
____
does not require the Board to grant adjustment of status. See
___
Blas, 15 I & N Dec. at 641. As we have written in an analogous
____
setting, "even the presence of preponderant equities or equities
that in the abstract could qualify as `unusual' or `outstanding'
does not compel the Board to grant relief." Gouveia, 980 F.2d at
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816.
Here, the Board offered an adequate explanation of why
it believed that petitioner's favorable factors were not
sufficiently compelling to justify adjustment of status. The
Board's decision focused on the seriousness of the firearms
conviction. It observed that both petitioner and his companion
were armed at the time of the arrest, and that petitioner had
maintained a deception by utilizing a pseudonym throughout the
criminal proceedings. The Board also looked to petitioner's
history of altercations with the law, particularly his tardiness
in acknowledging his crimes in New York. It took due note of the
favorable factors advanced by petitioner but determined, on
balance, that these points were not sufficiently robust to yield
the kind of unusual and outstanding equitable case that would
warrant an adjustment of status. In short, the Board
persuasively explained the premises on which it declined to
exercise its discretion. That ends the matter. A reviewing
court may not reweigh the equities afresh. See Gouveia, 980 F.2d
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16
at 819.
V
V
We need go no further. Adjustment of status is a
discretionary remedy. Although the Board could have afforded
petitioner this remedy, it chose not to do so. That is both the
Board's prerogative and its duty. In the absence of either a
mistake of law or a palpable abuse of discretion, we cannot
substitute our judgment for that of the Board.
The petition for review is denied and dismissed. The
The petition for review is denied and dismissed. The
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Board's decision and order are affirmed.
Board's decision and order are affirmed.
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17