Martinez v. INS

• Court: Court of Appeals for the First Circuit
• Decided: July 28, 1992
• Docket: 92-1008
• Status: Published

Opinion

USCA1 Opinion

July 28, 1992            ____________________

No. 92-1008

                                 JAVIER A. MARTINEZ,

                                     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.
                                   ______________

                                 ____________________

Roberto Gonzalez and Rappoport, Audette, Bazar  & Farley, on brief
            ________________     ___________________________________
        for petitioner.
            Stuart  M.  Gerson, Assistant  Attorney  General, Robert  Kendall,
            __________________                                ________________
        Jr.,  Assistant Director, and Donald E.  Keener, Office of Immigration
        ___                           _________________
        Litigation, Civil  Division, United  States Department of  Justice, on
        brief for respondent.

____________________

____________________

SELYA, Circuit Judge.  This is a petition to review
                             _____________

            a  decision  of  the  Board of  Immigration  Appeals  (Board)

            denying an  application for a  waiver of deportation  under  

            212(c)  of the  Immigration and  Naturalization Act  (Act), 8

            U.S.C.   1182(c).

            I.  BACKGROUND
                __________

                      Petitioner  is  a twenty-seven-year-old  native and

            citizen of  the  Dominican Republic.   He  first entered  the

            United  States on  a  two-year  tourist  visa  in  1974,  but

            remained  here unlawfully after the visa expired.  In 1983 he

            obtained  lawful  permanent   resident  status.     In  1990,

            petitioner was  convicted for possession of cocaine, delivery

            of  heroin,  and  driving   to  endanger.    Following  these

            convictions, the government brought  deportation proceedings.

            At  a preliminary  hearing, petitioner  conceded that  he had

            been convicted  of  violating controlled  substance laws  and

            was,  therefore,  deportable.    He  was  also  found  to  be

            deportable as an aggravated felon.  After a hearing, however,

            an  immigration judge  (IJ) granted  petitioner's application

            for  a  discretionary  waiver of  deportation  under  section

            212(c)  of  the  Act.   The  Immigration  and  Naturalization

            Service appealed the IJ's decision.  The Board sustained  the

            appeal  because  petitioner  "has  a  significant history  of

            criminal activity  . . .  and . .  . has engaged  in criminal

-2-

activities for the entire time he has been a lawful permanent

            resident."  Petitioner now seeks appellate review.

            II.  DISCUSSION
                 __________

                      The  Board's  decision whether  to  grant a  waiver

            under  section  212(c)  is  discretionary.   In  reviewing  a

            discretionary  decision  of  the  Board,  we  determine  only

            whether the  decision was arbitrary, capricious,  or an abuse

            of  discretion.  Hazzard v. INS, 951  F.2d 435, 438 (1st Cir.
                             _______    ___

            1991).  Accordingly, we  will uphold a decision of  the Board

            denying a section 212(c) waiver "unless it was made without a

            rational explanation, inexplicably departed  from established

            policies, or rested on an  impermissible basis."  Williams v.
                                                              ________

            INS, 773 F.2d 8,  9 (1st Cir. 1985).   To the extent that  we
            ___

            review  the   Board's  factfinding,   we  do  so   under  the

            substantial evidence  standard.   Blackwood v. INS,  803 F.2d
                                              _________    ___

            1165, 1168 (11th Cir. 1986).  That is, if the  facts found by

            the Board  are  supported by  "such  relevant evidence  as  a

            reasonable mind might accept to support [such] a conclusion,"

            they will be upheld upon review.  Consolo v. Federal Maritime
                                              _______    ________________

            Commission, 383 U.S. 607, 619-20 (1966).
            __________

                      In  this  proceeding,   petitioner  makes   several

            arguments.  We deal with these in turn.

                      1.  Deferral to the Immigration Judge's Findings
                          ____________________________________________

                      Petitioner argues  that the Board  was required  to

            defer to the IJ's findings on credibility and rehabilitation.

-3-

This argument has no merit.  It is well  established that the

            Board may review  the administrative record de novo  and make
                                                        __ ____

            its own findings of fact and law, including findings relating

            to a  petitioner's credibility.   Cordoba-Chaves v.  INS, 946
                                              ______________     ___

            F.2d 1244,  1249 (7th Cir. 1991);  Castillo-Rodriguez v. INS,
                                               __________________    ___

            929 F.2d 181, 184-85  (5th Cir. 1991); Goon Wing Wah  v. INS,
                                                   _____________     ___

            386 F.2d 292, 293-94 (1st Cir. 1967).

                      2.  Failure to Admit Additional Evidence or to     
                          ___________________________________________
                          Remand to Immigration Judge
                          ___________________________

                      Upon  appeal  to  the  Board  petitioner  submitted

            additional evidence to support  the IJ's decision, asking the

            Board to remand  the case for further  hearing if it did  not

            uphold the  decision.   The  Board declined  to consider  the

            additional evidence, noting that  "only 5 months have elapsed

            since   the  respondent's   release  from   prison.  .   .  .

            Accordingly,  any  new  evidence of  rehabilitation,  even if

            considered, would not be conclusive."

                      We do  not agree  with petitioner that  the Board's

            failure to consider  petitioner's additional  evidence or  to

            remand  the  case  for  further  hearing  was  an   abuse  of

            discretion.    To  the  extent  that  the  evidence  repeated

            testimony given at the hearing, it was cumulative, hence, not

            material.   See Cobourne v. INS, 779 F.2d 1564, 1566-67 (11th
                        ___ ________    ___

            Cir. 1986); Young  v. Department  of Justice,  759 F.2d  450,
                        _____     ______________________

            456-57 (5th Cir.), cert. denied, 474 U.S. 996 (1985).  And as
                               ____________

            the Board noted, the additional evidence covered a very brief

-4-

period of time.  Since petitioner had once before completed a

            drug treatment program, but had subsequently continued to use

            and sell  drugs, the  Board's determination that  evidence of

            such  short  duration would  not  conclusively establish  his

            rehabilitation was  reasonable.   See Blackwood, 803  F.2d at
                                              ___ _________

            1167.

                      3.  Factual and Legal Errors
                          ________________________

                      Petitioner  claims  that  the  Board  made numerous

            factual and  legal errors.   To the extent  that petitioner's

            assignments of  error concern inferences the  Board drew from

            conflicting evidence or  the way in which the  Board weighted

            different factors, they are without  merit.  See Consolo, 383
                                                         ___ _______

            U.S.  at 620;  Joseph v.  INS, 909  F.2d  605, 607  (1st Cir.
                           ______     ___

            1990); Osuchukwu v. INS, 744 F.2d 1136, 1141 (5th Cir. 1984).
                   _________    ___

            We discuss only the remaining asseverations.

                      First, petitioner claims that the Board  abused its

            discretion by  failing to find  that petitioner's  employment

            history  was a favorable factor.   In its  decision the Board

            noted that "a history of employment" is a favorable factor to

            be  considered in  determining whether  to grant  the section

            212(c)  waiver,  but  it  failed   to  make  any  mention  of

            petitioner's own employment  history.   Assuming the  Board's

            failure to consider a relevant favorable factor may sometimes

            constitute  an abuse of discretion, see, e.g., Jen Hung Ng v.
                                                ___  ____  ___________

            INS,  804  F.2d  534,  540  (9th  Cir.  1986),  the  evidence
            ___

-5-

submitted  in  this case  shows that  petitioner's employment

            history  would not be a significant favorable factor for him.

            With the exception of his  employment in 1982-83, his precise

            dates of employment before 1986 are either unverified by  his

            employers  or  unknown.   From  1986  to  1990,  when he  was

            imprisoned, petitioner  was engaged  in lawful work  for only

            five  months.  During the  same time frame,  he spent several

            years engaged in the illicit selling of drugs.

                      We  also note that  petitioner's attorney failed to

            present petitioner's employment history as a favorable factor

            to  the IJ.   Moreover, counsel did  not solicit petitioner's

            oral  testimony on this point at  the hearing.  In arguing to

            the Board  that his prior employment was  a favorable factor,

            petitioner  stated simply,  and incorrectly,  that he  "has a

            record of steady employment going back to 1983."  He  made no

            attempt  to elaborate  on his  allegation or  to  discuss the

            specifics of the documentary evidence he submitted.   A party

            who  suggests a point to the Board fleetingly and without any

            developed argumentation  is not  entitled to complain  if the

            Board disregards  the passing  reference.  See  Nunez-Pena v.
                                                       ___  __________

            INS, 956 F.2d 223,  225 n.4 (10th Cir. 1992);  Khalaf v. INS,
            ___                                            ______    ___

            909 F.2d 589, 592 (1st Cir. 1990).  Consequently, the Board's

            failure  to consider petitioner's  employment history was not

            error.

-6-

Second, petitioner argues  that the Board erred  by

            failing to consider certain  specific claims made or evidence

            presented  in  the  proceedings  below.   We  have  carefully

            examined the alleged omissions.  The Board discussed all  the

            salient  aspects   of  petitioner's  claims  which  were  (a)

            properly before  it and  (b) supported by  specific evidence.

            No more was exigible.   Where, as  here, the Board has  given

            reasoned  consideration  to the  petition, and  made adequate

            findings, we  will not  require that it  address specifically

            each  claim the petitioner made or each piece of evidence the

            petitioner presented.   See  Vergara-Molina v. INS,  956 F.2d
                                    ___  ______________    ___

            682, 685 (7th Cir. 1992);  Villanueva-Franco v. INS, 802 F.2d
                                       _________________    ___

            327, 329-30 (9th Cir.  1986); Yahkpua v. INS, 770  F.2d 1317,
                                          _______    ___

            1321 (5th Cir. 1985); cf. Sanchez v. INS, 755 F.2d 1158, 1160
                                  ___ _______    ___

            (5th Cir. 1985) ("Thus, our review is limited to ascertaining

            whether  any consideration has been  given by the  Board to a
                     ___

            limited  range of factors, nor  are we free  to undermine the

            discretion of  the Board by  parsing these factors  into ever

            smaller subfactors  and requiring  the Board to  consider the

            pieces.") (emphasis in original; footnote omitted). 

                      Finally,  petitioner  argues   that,  even  if  the

            alleged   errors  are  insignificant  standing  alone,  taken

            together  they  represent   "significant  errors"   requiring

            reversal   of  the   Board's   decision.     Here,   however,

            petitioner's  individual assignments  of error are  devoid of

-7-

merit and the Board's  decision "sets out clearly  the ground

            which forms the  basis for [its] denial of  the discretionary

            [waiver]."  Crespo-Gomez v. Richard,  780 F.2d 932, 935 (11th
                        ____________    _______

            Cir. 1986).   That being so,  and because the  facts of  this

            case  fall well within the factual profiles of other cases in

            which aliens with controlled  substance convictions have been

            denied section  212(c) waivers, see, e.g.,  Hazzard, 951 F.2d
                                            ___  ____   _______

            435;  Blackwood, 803  F.2d 1165;  Matter of  Edwards, Interim
                  _________                   __________________

            Dec. No. 3134 (BIA 1990); Matter  of Buscemi, 19 I. & N. Dec.
                                      __________________

            628 (BIA 1988), petitioner's argument is unpersuasive.

                      4.      Failure   to   Articulate   Guidelines  for
                              ___________________________________________
            Determining             When an Applicant's Equities Meet the
            ____________            _____________________________________
            Board's                        Standard
            ________                       ________

                      Petitioner  claims  that   the  Board  also   acted

            arbitrarily  when it found that  he had not  shown unusual or

            outstanding  equities  because it  has  failed  to articulate

            "guideline[s]"  for determining what  that standard means and

            how to apply it.  The Board's  application of the "unusual or

            outstanding  equities" standard  in section 212(c)  cases has

            been accepted both  by this  court, see,  e.g., Hazzard,  951
                                                ___   ____  _______

            F.2d  at 438-39, and by other courts, see, e.g., Ayala-Chavez
                                                  ___  ____  ____________

            v.  INS, 944 F.2d 638,  641 (9th Cir.  1991); Nunez-Pena, 956
                ___                                       __________

            F.2d at  225.  Petitioner has presented  no compelling reason

            for us to revisit this issue.

            III.  CONCLUSION
                  __________

-8-

We need go no  further.  Inasmuch as  this petition

            presents no  substantial  question, we  summarily affirm  the

            decision of the Board.  See 1st Cir. Rule 27.1.
                                    ___

                      The petition for review is denied and dismissed.
                      _______________________________________________

-9-