Perez Guzman v. INS

• Court: Court of Appeals for the First Circuit
• Decided: November 17, 1992
• Docket: 92-1188
• Status: Published

Opinion

USCA1 Opinion

November 17, 1992
                                [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 92-1188

TOMAS ELIGIO PEREZ-GUZMAN,

                                     Petitioner,

                                          v.

                       IMMIGRATION AND NATURALIZATION SERVICE,

                                     Respondent.

__________________

                          ON PETITION FOR REVIEW OF AN ORDER

                         OF THE BOARD OF IMMIGRATION APPEALS

                              _________________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

                                 ___________________

Carl Krueger on brief for petitioner.
               ____________
               Stuart   M.  Gerson,   Assistant  Attorney   General,  Civil
               ___________________
          Division,  and  Thomas  W.  Hussey, Deputy  Director,  Office  of
                          __________________
          Immigration Litigation, Civil Division, on brief for respondent.

__________________

                                 __________________ 

Per Curiam.   This is  a petition for review  of a final
                 __________

            order of deportation.  The sole issue involved is whether the

            Board  of   Immigration  Appeals  (BIA)   erred  in   denying

            petitioner's request  for  voluntary  departure  in  lieu  of

            deportation.   We find no  abuse of discretion  and therefore

            affirm the decision below. 

                                          I.

                 Petitioner is  a 41-year-old  native and citizen  of the

            Dominican  Republic.   In March  1985, he entered  the United

            States without inspection.  In April  1986, he married Selene

            Garcia, a  Dominican native and lawful  permanent resident of

            the  United States.   Apart  from a  six-month separation  in

            1987, the two thereafter  lived together in Providence, Rhode

            Island.     Garcia   had  four   children  from   a  previous

            relationship; petitioner had two of his own, who  remained in

            the Dominican Republic.   In June 1986, Garcia applied  for a

            second  preference  immigrant  visa  for  petitioner.    That

            application  was   approved  the  following   month,  placing

            petitioner on a waiting  list to await the availability  of a

            visa  number for  his  particular  nationality and  immigrant

            category.   This  process, according  to the  government, can

            take several years.  

                 In November 1987, petitioner was arrested on a charge of

            making  a  false  statement  in a  passport  application,  in

            violation of 18  U.S.C.   1542.  The evidence  showed that in

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August  1987  he  had   used  a  false  Puerto   Rican  birth

            certificate (which  he had  purchased privately for  $100) to

            apply  for a passport.1  Petitioner pled guilty to the charge

            on December 9,  1987, and agreed  not to oppose  deportation.

            Sentencing was  deferred, and petitioner was  released to INS

            custody.

                 Deportation proceedings were  then instituted,  premised

            on petitioner's  original entry  without inspection.   A show

            cause  order issued in December 1987, and a hearing before an

            immigration judge (IJ) occurred over three days between March

            and June 1988.   Petitioner conceded deportability, and asked

            for discretionary relief in  the form of voluntary departure.

            His principal request was that he be allowed to depart in six

            months: he explained that  his wife was expecting a  child in

            October  1988 and that he  wished to remain  until that time.

            He later mentioned, during his testimony, that he also wished

            to wait in this  country until a visa became available.   The

            IJ  denied  the  request.   Relying  on  the  false-statement

            conviction and other factors,  he determined that  petitioner

            was  both   statutorily  ineligible   for  such   relief  and

            undeserving of same in  the exercise of discretion.   The BIA

            affirmed on the latter ground alone.

                                         II.

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            1.  Petitioner explained  at the deportation hearing  that he
            had sought  to return  temporarily to the  Dominican Republic
            because one of his children was ill.

                                         -3-

Voluntary departure is  a privilege  which the  Attorney

            General is  authorized  to bestow  "in  his discretion."    8

            U.S.C.   1254(e).   The  award of voluntary  departure to  an

            alien   who  would  otherwise  be  deported  entails  several

            advantages:  (1)  it  allows  him  to  avoid  the  stigma  of

            deportation; (2) it allows him to select his own destination;

            and  (3)  it facilitates  the  possibility of  return  to the

            United  States.2  See,  e.g., Landon  v. Plasencia,  459 U.S.
                              ___   ____  ______     _________

            21, 26 & n.4 (1982); Garcia-Lopez v. INS,  923 F.2d 72, 74-75
                                 ____________    ___

            (7th Cir. 1991); Contreras-Aragon v. INS, 852 F.2d 1088, 1090
                             ________________    ___

            (9th  Cir. 1988); 3 C.  Gordon & S.  Mailman, Immigration Law
                                                          _______________

            and Procedure   74.02[1][a], at 74-16 (1992).  
            _____________

                 To be  eligible for  voluntary departure, an  alien must

            establish that he  has been  of good moral  character for  at

            least the five years preceding his application, and also that

            he  has  the financial  means  to  depart.   See  8 U.S.C.   
                                                         ___

            1254(e).   In  addition to  these statutory  requirements, he

            must demonstrate equities  that outweigh any  adverse factors

            and merit a  favorable exercise  of discretion.   See,  e.g.,
                                                              ___   ____

            Abedini v.  INS,  971  F.2d  188,  192-93  (9th  Cir.  1992);
            _______     ___

            Villanueva-Franco v. INS, 802 F.2d  327, 329 (9th Cir. 1986).
            _________________    ___

____________________

            2.  Unless the Attorney  General otherwise permits, an  alien
            who  has been  excluded  from admission  and deported  cannot
            again  seek admission within one  year, and one  who has been
            arrested and deported  cannot do so  for five years.   See  8
                                                                   ___
            U.S.C.   1182(a)(6).  Voluntary departure enables an alien to
            avoid these restrictions.  

                                         -4-

We  review  the denial  of voluntary  departure for  abuse of

            discretion.  See, e.g.,  Oluyemi v. INS, 902 F.2d  1032, 1034
                         ___  ____   _______    ___

            (1st Cir.  1990).  "The denial  will be upheld 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)
                          ________    ___

            (quotations omitted) (denial of  motion to reopen deportation

            proceedings);  see,  e.g.,  Garcia-Lopez,  923   F.2d  at  74
                           ___   ____   ____________

            (applying  this standard to  denial of  voluntary departure).

            So  long  as  the   Board  weighed  all  the   favorable  and

            unfavorable factors  and  supported  its  conclusion  with  a

            reasoned  explanation  based   on  legitimate  concerns,  its

            decision will be  upheld.   See, e.g., Abedini,  971 F.2d  at
                                        ___  ____  _______

            193;  Estrada-Posadas v.  INS, 924  F.2d 916,  920 (9th  Cir.
                  _______________     ___

            1991).

                                         III.

                 As  mentioned, the BIA affirmed on the basis of the IJ's

            alternative rationale that the equities in petitioner's favor

            did not sufficiently  outweigh the adverse  factors so as  to

            warrant a  favorable exercise  of discretion.3   The IJ  took

            note of the  following factors.  That  petitioner was married

            to a  lawful permanent resident with four  children, that his

____________________

            3.  See INS v. Rios-Pineda, 471 U.S. 444, 449 (1985) ("if the
                ___ ___    ___________
            Attorney General decides  that relief should  be denied as  a
            matter  of  discretion,  he  need not  consider  whether  the
            threshold  statutory  eligibility   requirements  are   met")
            (denial of motion to reopen).

                                         -5-

wife  was pregnant, and that he had an approved visa petition

            all weighed  in his favor.  On the other hand, petitioner had

            been  convicted of making a false statement in applying for a

            passport   and  had  earlier  obtained  a  counterfeit  birth

            certificate.    He  had  violated  the  immigration  laws  by

            entering   without    inspection   and   then    by   working

            intermittently without authorization.  He provided no support

            to  his  wife or  stepchildren.   And  the IJ  found  that he

            exhibited a "lack of  complete candor" during his testimony.4

            In  determining that  these  adverse factors  outweighed  the

            equities,  the  IJ  and the  BIA  acted  in  accord with  the

            approach  taken  in  analogous   cases  in  which   voluntary

            departure has been denied.5

____________________

            4.  During  his direct testimony, petitioner implied (1) that
            he had resided with  his wife ever since their  marriage, and
            (2)  that he would not violate the requirement that he obtain
            authorization  before working  in  this country.   Only  when
            pressed on cross-examination did he disclose that he had been
            separated  from  his wife  for six  months,  and that  he had
            worked without authorization.   The IJ viewed this misleading
            testimony as an attempt to "amplify his favorable equities."

            5.  See,  e.g.,  Abedini,  971  F.2d at  193  (entry  without
                ___   ____   _______
            inspection; false  passport);  Estrada-Posadas, 924  F.2d  at
                                           _______________
            920-21 (two entries without inspection; discrepancies between
            written  application and  oral testimony);  Garcia-Lopez, 923
                                                        ____________
            F.2d  at  75-76 (approved  visa  petition;  citizen wife  and
            stepchild;   multiple  illegal   entries,  once   with  false
            passport);  Villanueva-Franco, 802  F.2d at  329-30 (approved
                        _________________
            visa  petition;  citizen  wife   and  child;  entry   without
            inspection and multiple drunk-driving  convictions); Carnejo-
                                                                 ________
            Molina  v. INS, 649 F.2d  1145, 1151-52 (5th  Cir. 1981) (two
            ______     ___
            citizen children;  several illegal entries,  once with  false
            passport; evasive testimony)

                                         -6-

Petitioner advances several  specific challenges to  the

            agency  decision, none of which proves persuasive.  First, he

            contends   that  his   false-statement  conviction   and  his

            acquisition of a false birth certificate together constituted

            only a single adverse factor--not two,  as the IJ held.   Yet

            the  latter   event  was  a  separate   undertaking  and  was

            appropriately  deemed  an  independent factor.    Second,  he

            argues  that the IJ  "inflated the  importance" of  his other

            immigration law violations--his  entry without inspection and

            unauthorized  employment--by  describing   them  as   serious

            adverse  factors.  Yet he  relies on cases  holding that such

            violations provide  an insufficient basis for  finding a lack

            of  "good  moral character"  under  the statute.    Here, his

            immigration  transgressions  were  not invoked  to  find  him

            statutorily  ineligible.   Rather,  they  were  considered in

            connection with the agency's  discretionary determination--an

            inquiry  to  which  immigration  law  violations  are plainly

            relevant.  See, e.g., Garcia-Lopez, 923 F.2d at 75.
                       ___  ____  ____________

                 Third, petitioner objects to  the BIA's reference to his

            "history  of fraudulent conduct  over the years  to avoid the

            immigration  laws."   He  contends  that the  false-statement

            conviction was his only  fraudulent action.  Yet the  BIA was

            plainly referring  as well  to his entry  without inspection,

            his  acquisition  of  a  false  birth  certificate,  and  his

            unauthorized employment.   Fourth, he argues  that the agency

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improperly  failed  to  regard  his four  stepchildren  as  a

            favorable  equity.   To  the  contrary,  the IJ  specifically

            mentioned them as a favorable factor.  It is true that the IJ

            emphasized the relationship of those children to their mother

            rather than to petitioner.   Yet given that petitioner's wife

            spoke  of them in her  testimony as "my"  children, and given

            that petitioner has provided  them with no financial support,

            we cannot say such emphasis was misplaced.

                 Finally, petitioner complains  that, during the hearing,

            he was prevented from documenting his  reasons for seeking an

            extended period  of voluntary  departure.   Specifically,  he

            sought to introduce testimony describing the hardship that he

            and his family would suffer  if he were unable to  remain for

            the birth of his  child and the availability of  an immigrant

            visa.6   The  IJ  barred such  testimony,  permitting him  to

            describe only the amount  of time that would be  necessary to

            get  his affairs in  order.   Petitioner's objection  to this

            ruling  fails for a  number of reasons.   To the  extent such

            evidence would have pertained only to the length of voluntary
                                                      ______

            departure requested, it is irrelevant to the question here of

            whether  such  relief  (of whatever  duration)  was  properly

            denied.   Moreover,  while  it is  true that  an  IJ "is  not

            limited  as to the period of  time he may grant for voluntary

____________________

            6.  No  detailed offer of proof was  made, and petitioner has
            not since specified whether such hardship would have entailed
            anything more than the obvious dislocations.

                                         -8-

departure,"  the  "usual period  of  time allowed  ...  is 30

            days,"  and such relief may not be granted "for an indefinite

            period of time."   In re Quintero, 18  I. & N. Dec. 348,  351
                               ______________

            (1982).     Voluntary  departure  is  thus  an  inappropriate

            mechanism  for delaying  departure indefinitely  in  order to

            await an immigrant visa.  See, e.g.,  C. Gordon & S. Mailman,
                                      ___  ____

            supra, at 74-14.   Cf. Oluyemi, 902 F.2d at  1033-34 (request
            _____              ___ _______

            to stay in this country pending outcome of visa petition, and

            accompanying request  for voluntary departure,  were properly

            denied);  Lad v.  INS,  539 F.2d  808,  810 (1st  Cir.  1976)
                      ___     ___

            (request for indefinite period of voluntary departure because

            of  alien's   desire  to  pursue  collateral  litigation  was

            properly denied).   As to petitioner's request  to attend the

            birth of his child, it suffices at this point to observe that

            such event occurred over four years ago.

                 We  find that  the agency  considered all  the equities,

            balanced  them against  the adverse  factors, and  provided a

            rational explanation  for its decision.  We therefore find no

            abuse of  discretion and summarily affirm  the BIA's decision

            under Loc. R. 27.1.

                 Affirmed.
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