Saied Parcham v. Immigration and Naturalization Service

769 F.2d 1001, 1985 U.S. App. LEXIS 21912

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 13, 1985
• Docket: 81-1529
• Status: Published

Opinions

WIDENER, Circuit Judge:

Petitioner Saied Parcham, an Iranian national, appeals an order of the Board of Immigration Appeals (Board) affirming an immigration judge’s finding of deportability and denial of voluntary departure. Parcham does not contest the finding of deportability, and appeals only from the denial of voluntary departure.¹ We affirm.

The facts before us are not in dispute. Parcham entered the United States as a nonimmigrant student in November 1977. He was authorized to remain in the United States, including visa extensions, until May 31, 1979. Upon entering the country, Parcham enrolled at an English language school in Washington, D.C. He later transferred, with permission from the Immigration and Naturalization Service, to Bay College in Baltimore, Maryland. Parcham subsequently transferred, again with permission, to Community College of Baltimore. In the fall of 1979, following the expiration of his authorized stay, Parcham transferred without permission to Morgan State University in Baltimore.

On April 14, 1980, Parcham was charged with remaining in the United States for a period longer than authorized, in violation of 8 U.S.C. § 1251(a)(2), under the Immigration and Nationality Act of 1952, as amended. A deportation hearing was held on January 5,1981, at which time the immigration judge found Parcham’s deportability established. At that point in the proceeding, Parcham made application for a voluntary departure, as permitted in the discretion of the Attorney General, pursuant to 8 U.S.C. § 1254(e) and 8 C.F.R. § 244.1-.2. Such application may also be authorized by the immigration judge. See 8 C.F.R. §§ 242.8(a), 242.17(b) and 244.1.

During the presentation of testimony on whether Parcham’s circumstances merited the benefit of voluntary departure, it became apparent that Parcham had not limited his activities in the United States to attending school. First, Parcham acknowledged his participation in a violent demonstration in California against the Shah of Iran, at which police cars were overturned and burned, and stones were thrown at fire fighters. Second, while Parcham contended he was a monitor at the demonstration, and was responsible for maintaining a peaceful protest, it was established that, at the time of the hearing, Parcham was the subject of a pending felony arson charge stemming from his participation in the demonstration. Third, Parcham testified to his involvement with another criminal charge arising from an altercation with a police officer while in a police station. Parcham was found guilty of disorderly conduct or resisting arrest and was fined $15.00.

In support of his request for voluntary departure, Parcham testified that he could leave the United States at his own expense and was a person of good moral character as minimally required for voluntary departure under 8 U.S.C. § 1254(e). He also pointed to his status as a full-time student with satisfactory grades. The Board, however, relying upon Parcham’s involvement in a violent demonstration, the pending felony charge, and the resisting arrest incident, concluded that Parcham’s behavior while in the United States did not warrant the granting of voluntary departure. It affirmed the immigration judge.

On appeal, Parcham contends that the Board arbitrarily and capriciously abused its discretion in denying the application for voluntary departure. In particular, Parcham argues, first, that the reliance on Parcham’s involvement in the anti-Shah protest was an impermissible consideration of the exercise of his First Amendment rights, and, second, that reliance upon the arrest for arson and the pending felony charge, without conviction, was also an improper factor for consideration.

The decision of whether to permit an admittedly deportable alien to depart voluntarily is a matter within the discretion of the Attorney General. 8 U.S.C. § 1254(e). As noted earlier, an immigration judge qualifies as an official authorized to exercise such discretion. See Jay v. Boyd, 351 U.S. 345, 351, 76 S.Ct. 919, 923, 100 L.Ed. 1242 (1956). The relevant statutory provision, 8 U.S.C. § 1254(e), provides in part:

The Attorney General may, in his discretion, permit any alien under deportation proceedings ... to depart voluntarily from the United States at his own expense in lieu of deportation if such alien shall establish to the satisfaction of the Attorney General that he is, and has been, a person of good moral character for at least five years immediately preceding his application for voluntary departure____

In reviewing a refusal to favorably exercise the discretionary relief of voluntary departure, we only examine whether the discretion was actually exercised and whether it was exercised in an arbitrary and capricious manner. Carnejo-Molina v. INS, 649 F.2d 1145, 1151 (5th Cir.1981); Cuevas-Ortega v. INS, 588 F.2d 1274, 1278 (9th Cir.1979); Femandez-Gonzalez v. INS, 347 F.2d 737, 740 (7th Cir.1965).

In a proceeding to consider an application for voluntary departure, the burden of proof rests with the alien to establish that a favorable exercise of discretion is warranted. Cuevas-Ortega v. INS, 588 F.2d at 1278. Initially, there are two statutory requirements for voluntary departure which the alien has the burden of proving. The alien must establish, first, the ability to pay for his departure, and, second, his good moral character for at least five years preceding the application for voluntary departure. 8 U.S.C. § 1254(e).

At the deportation hearing, Parchara testified affirmatively as to both requirements. Thus, his testimony, if believed, tended to show that he was statutorily eligible for voluntary departure. However, while the satisfaction of these minimum statutory requirements is necessary for consideration of voluntary departure, it does not follow that they are sufficient for its granting. It is clear the statute does not contemplate that all aliens who fulfill such requirements merit discretionary relief as a matter of course. See Hibbert v. INS, 554 F.2d 17 at 20-21 (2d Cir.1977). In similar, but not the same, context, the Court has so held. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77, 77 S.Ct. 618, 621, 1 L.Ed.2d 652 (1957). Rather, once the minimal requirements are met, discretion of the Attorney General must yet be exercised, and Parcham still bears the burden of proving the Attorney General abused the exercise of his discretion in denying voluntary departure. See 8 C.F.R. § 242.-17(d) and (e).

The Board considered the discretionary exercise of its authority in its well-reasoned decision as follows:

The immigration judge’s decision emphasized three adverse factors: the violent nature of the demonstration in which the respondent was involved, the fact that charges of arson were still pending against him, and his admission of a conviction for a criminal offense characterized as disorderly conduct or resisting arrest following an altercation with a police officer, for which he was fined $15. We believe that the denial of voluntary departure was warranted.

The respondent’s conviction for behaving improperly toward a police officer is clearly an adverse factor which militates against a favorable exercise of discretion. Furthermore, inasmuch as serious felony charges are still pending against the respondent, we do not believe it is inappropriate to consider them in a determination on the merits of the respondent's application for discretionary relief. Unlike the police reports [improperly] employed in Sierra-Reyes v. INS, 585 F.2d 762 (5th Cir.1978), which enumerated charges that had apparently been dropped for insufficient evidence, the respondent [here] appeared twice in court for the arson charge before the proceedings were continued due to the delicate political situation during the captivity of American hostages in Iran. The prosecution therefore appears to remain active on the charges, which we believe present an additional adverse factor.

The respondent has submitted several letters from his professors attesting to his academic progress. However, we do not consider his successful completion of studies to be a significant equity. Furthermore, we are not impressed by the respondent’s claim that he only acted as a monitor in the demonstration when his activity resulted in the charges of arson against him.

The respondent’s equities are minimal. On the other hand, he has a criminal conviction resulting from violent conduct toward a police officer and is the subject of pending arson charges. Under these circumstances, we agree with the immigration judge’s assessment that a favorable exercise of discretion is not warranted.

We concur in the decision of the Board on this issue, and in that the Board exercised its discretion in a manner that was neither arbitrary nor capricious, and that its decision was supported by substantial evidence.

In so holding, we reject Parcham’s contention that the Board’s reliance on his participation in the demonstration violated his rights to free speech and assembly under the First Amendment. It has long been held that aliens residing in this country enjoy the protection of the First Amendment. Bridges v. Wixon, 326 U.S. 135, 148, 65 S.Ct. 1443, 1449, 89 L.Ed. 2103 (1945); see Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941). Included in that protection is the right to peaceful expression of views through public demonstration. Carey v. Brown, 447 , 100 S.Ct. 2286, 2289, 65 L.Ed.2d 263 (1980); Shuttlesworth v. Birmingham, 394 U.S. 147, 152, 89 S.Ct. 935, 939, 22 L.Ed.2d 162 (1969). However, it is also the law that First Amendment protection does not extend to violent demonstrations. Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972). Whatever Parcham’s role was in the demonstration, there is no doubt that he participated and there is no doubt that the demonstration was violent. While the Board was “not impressed” by Parcham’s claim that he acted as a monitor in the demonstration, even if that claim be true, we think the fact of his participation and subsequent indictment were factors the Attorney General was permitted to consider in deciding whether or not to exercise his discretion in favor of Parcham.

We also find no error in the Board’s reliance on the pending felony arson charges. Evidence of an alien’s conduct, without a conviction, may be considered in denying the discretionary relief of voluntary departure. See Aalund v. Marshall, 461 F.2d 710, 713 (5th Cir.1972); Gambino v. INS, 419 F.2d 1355, 1358 (2d Cir.1970); Talavera v. Pederson, 334 F.2d 52, 57 (6th Cir.1964). Thus, we find that the Board was entitled to consider the pending arson charges in deciding whether or not to exercise its discretion in favor of or against voluntary departure.²

Accordingly, the decision of the Board is AFFIRMED.³

1 . Voluntary departure offers significant advantages over deportation. An alien who is granted voluntary departure avoids the stigma of deportation, is permitted to choose his own destination, and finds it considerably easier to gain reentry to the United States. See London v. Plasencia, 459 U.S. 21, 26 n. 4, 103 S.Ct. 321, 326 n. 4, 74 L.Ed.2d 21 (1982); Jain v. INS, 612 F.2d 683, 686 n. 1 (2d Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2155, 64 L.Ed.2d 789 (1980).

2 . We are now told that Parcham was acquitted of the arson charges pending this appeal. That does not alter our decision. We think the Attorney General is entitled to consider the facts as they exist at the time he acts. In particular, he does not have to wait for the disposition of pending criminal charges.

3 . The dissent, in large or even the greater part, urges that we reverse because of the Immigration Judge’s consideration of Parcham’s nationality, and the judge's basing her opinion in part upon foreign policy factors the dissent contends are impermissible for consideration. What the dissent does not consider, however, is that our role is limited to reviewing the order of the Board for an abuse of its broad discretion, and we may not substitute our judgment for that of the Board. E.g. Strantzalis v. INS, 465 F.2d 1016, 1017 (3d Cir.1972); Kalatjis v. Rosenberg, 305 F.2d 249, 250 (9th Cir.1962); Polites v. Sahli, 302 F.2d 449, 451 (6th Cir.1962), cert. denied, 371 U.S. 916, 83 S.Ct. 259, 9 L.Ed.2d 175 (1962). See INS v. Jong Ha Wang, 450 U.S. 139, 145, 101 S.Ct. 1027, 1031, 67 L.Ed.2d 123 (1981).

In exercising its discretion, the Board is not bound by the Immigration Judge’s order, but is free to make its own determination. Goon Wing Wah v. INS, 386 F.2d 292, 293-94 (1st Cir.1967); DeLucia v. INS, 370 F.2d 305, 308 (7th Cir.1966). A careful reading of the decision of the Board from beginning to end does not disclose that it was based even in part upon Parcham’s nationality or that the Board delved into foreign policy. Thus, the Board chose not to rest its decision on either factor the dissent considers impermissible, and instead based its determination on factors we have found to be otherwise permissible for consideration. We are unable to assume, as the dissent’s argument seems to demand, that factors not mentioned by the Board were taken into consideration by it, because it did not explicitly disavow them, and then proceed to review its decision on that basis. Batoon v. INS, 707 F.2d 399, 402 (9th Cir. 1983). "The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” S.E.C. v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943). Indeed, even Judge Friendly’s opinion in Hang v. INS, 360 F.2d 715 (2d Cir.1966), upon which the dissent heavily relies, requires that for a finding of abuse of discretion, the decision must rest upon the impermissible consideration. Id. at 719. As this was not the case, there exists no basis for concluding the Board abused its discretion.