Robert Garcia Start v. Immigration and Naturalization Service

803 F.2d 539, 1986 U.S. App. LEXIS 32885
CourtCourt of Appeals for the Ninth Circuit
DecidedOctober 28, 1986
Docket85-7460
StatusPublished
Cited by12 cases

This text of 803 F.2d 539 (Robert Garcia Start v. Immigration and Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robert Garcia Start v. Immigration and Naturalization Service, 803 F.2d 539, 1986 U.S. App. LEXIS 32885 (9th Cir. 1986).

Opinions

CHOY, Senior Circuit Judge:

Robert Garcia Start petitions for review of a decision by the Board of Immigration Appeals (BIA) denying his request for discretionary relief from deportation under the amended section 241(f)(1) of the Immigration and Nationality Act of 1952 (INA), 8 U.S.C. § 1251(f)(1) (1982). We have jurisdiction under 8 U.S.C. § 1105a(a), and we deny the petition.

I.

In 1979, Robert Start entered the United States as the unmarried son of a lawful permanent resident under section 203(a)(2) of the INA, 8 U.S.C. § 1153(a)(2) (1982). However, at the time of entry he was in fact married to Marylou M. Quimbo. Moreover, after admission into the United States, Start married Quimbo a second time, in order to enable her and their children to obtain an immigrant visa.

Deportation proceedings against Start commenced on October 28, 1982. Start was formally charged with entering the United States by fraud. Start had claimed that he was the unmarried son of a lawful permanent resident when in fact he was married to Quimbo, in violation of section 212(a)(19) of the INA, 8 U.S.C. § 1182(a)(19) (1982). He was also charged with entering without a valid labor certification or other valid entry document, in violation of sections 212(a)(14) and 212(a)(20), 8 U.S.C. § 1182(a)(14) & (a)(20), respectively.

At the hearing, Start requested that his deportation be waived pursuant to section 241(f)(1) of the INA, 8 U.S.C. § 1251(f)(1) (1982), in light of the fact that his father, mother, three brothers and two sisters are all either United States citizens or lawful permanent residents. Moreover, four days before his deportation hearing, Start was married to a United States citizen. After the hearing, a child was born to Start and his American wife.

Section 241(f)(1) affords the Attorney General discretion to waive the deportation of an alien who is the spouse or parent of a United States citizen, and was in the possession of an immigrant visa procured by fraud or misrepresentation.1 Prior to 1981, waiver under section 241(f) was mandatory, if the alien had the requisite family connection to the United States, and the fraud for [541]*541which the alien was charged was of the type forgivable by the provision. See 8 U.S.C. § 1251(f) (1976).

The immigration judge found Start deportable and denied waiver relief. The judge determined that Start’s conduct, which included the “further” fraud of trying to procure an immigrant visa for his wife in the Philippines by marrying her a second time, warranted not invoking the forgiveness provision. The judge, however, characterizing Start’s behavior as a “single lapse” of moral character, granted a request for voluntary departure.

Start appealed to the BIA, which affirmed the denial of the section 241(f)(1) waiver. The BIA based its decision on the adverse credibility finding regarding Start’s contention of good faith, and the fact that Start “compounded [his fraud at entry] with a new instance of misrepresentation by participating in a second marriage ceremony, claiming it to be his first, and using it to attempt to immigrate his Filipino wife.”

Start timely appeals the BIA’s denial of the section 241(f)(1) waiver of deportation.

II.

The narrow question on this appeal concerns the exercise of discretion not to grant a waiver from deportation under section 241(f)(1) of the INA, 8 U.S.C. § 1251(f)(1). Start does not contest the finding of deportability by the immigration judge and the BIA. Moreover, Start’s eligibility for the waiver is not at issue. Both the immigration judge and the BIA explicitly concluded that Start met the requirements for relief under section 214(f)(1).

We review the BIA’s decision not to invoke the forgiveness provision under the abuse of discretion standard. Hernandez-Robledo v. INS, 777 F.2d 536, 540 (9th Cir.1985). We note initially that the abuse of discretion standard leaves the BIA with much flexibility in exercising its judgment. See id. at 540-41 (affirming denial of section 241(f)(1) relief as “rational”); Dallo v. INS, 765 F.2d 581, 587 (6th Cir.1985) (noting “high level of discretionary authority” vested in Attorney General).

Start contends that because the waiver provision was intended to ensure that aliens would not be separated from family members lawfully in the United States, proof of substantial family connections in the United States was sufficient to compel the BIA to grant discretionary relief. We reject this argument.

In 1981, Congress amended section 241(f) to make the once mandatory waiver provision discretionary. See H.R.Rep. No. 264, 97th Cong., 1st Sess. 25, reprinted in 1981 U.S.Code Cong. & Admin.News 2577, 2593-94; see also Hernandez-Robledo, 777 F.2d at 540. The purpose of the amendment was neither to expand nor circumscribe the scope of the forgiveness provision. Rather, Congress was responding to the fact that “differing administrative and judicial interpretations have left the law in a state of confusion which makes it virtually impossible for the INS to uniformly administer section 241(f).” H.R.Rep. No. 264, 97th Cong., 1st Sess. 25, reprinted in 1981 U.S. Code Cong. & Admin.News 2577, 2594 (citation omitted). By clarifying the scope of the forgiveness provision and by making the waiver discretionary, Congress intended to “obviate the need for further litigation” and to “promote the uniform administration of this section.” Id. To achieve these goals, this circuit has indicated that the BIA may refuse to exercise its discretion in favor of an alien who is statutorily eligible for relief and who would probably have qualified for the mandatory waiver of deportation prior to the recent amendment. See Hernandez-Robledo, 777 F.2d at 539-41. Thus, proof of family connections in the United States, while a necessary element in the determination of whether to grant waiver, is not solely dispositive of the issue. See, e.g., id. at 541 (finding BIA’s denial of section 241(f)(1) waiver “rational” because deportation would not disrupt petitioner’s primary family unit and because petitioner had been “recently convicted of a crime for which an alien can be excluded”).

[542]*542Start also argues that the BIA abused its discretion in finding that a second distinct instance of fraud justified denial of the waiver, when the immigration judge held that he had committed only one “single lapse” in moral character.

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803 F.2d 539, 1986 U.S. App. LEXIS 32885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robert-garcia-start-v-immigration-and-naturalization-service-ca9-1986.