White v. INS

• Court: Court of Appeals for the First Circuit
• Decided: March 3, 1994
• Docket: 93-1043
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 93-1043
        No. 93-1348

                                   BEATRICE WHITE,

                                     Petitioner,

                                          v.

                       IMMIGRATION AND NATURALIZATION SERVICE,

                                     Respondent.
                                 ____________________

                         ON PETITIONS FOR REVIEW OF ORDERS OF

                           THE BOARD OF IMMIGRATION APPEALS

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Aldrich, Senior Circuit Judge,
                                     ____________________
                           and McAuliffe,* District Judge.
                                           ______________

                                 ____________________

            Gerald D. Wall with  whom Victoria Lewis and Greater Boston  Legal
            ______________            ______________     _____________________
        Services were on brief for petitioner.
        ________
            Alison R.  Drucker,  Attorney, Office  of Immigration  Litigation,
            __________________
        Civil  Division,  Department of  Justice, with  whom Frank  W. Hunger,
                                                             ________________
        Assistant  Attorney  General,  and  Lisa  Dornell,  Acting   Assistant
                                            _____________
        Director, Office of Immigration Litigation, Civil Division, Department
        of Justice, were on brief for respondent. 

____________________

                                    March 3, 1994
                                 ____________________

        _____________________

        *Of the District of New Hampshire, sitting by designation.

McAULIFFE,   District  Judge.      The  Board   of
                       McAULIFFE,   District  Judge.
                                    _______________

             Immigration Appeals ("BIA") ordered Beatrice White  deported

             and  denied her  application for  discretionary  relief from

             deportation.     White  concedes  the   deportation  order's

             validity, but  petitions this court  to set aside  the BIA's

             denial of discretionary  relief.  8 U.S.C.   1105a(a).   See
                                                                      ___

             Foti v. INS,  375 U.S. 217  (1963); Joseph v. INS,  909 F.2d
             ___________                         _____________

             605, 606  (1st Cir.  1990).  Although  we find that  the BIA

             erred, we conclude that the error was harmless and affirm.

I.  Background
                                    I.  Background

                       White, a  citizen of  the Dominican  Republic, has

             lived as  a permanent resident  in this country  since 1970.

             In 1982 she was arrested and charged with five separate drug

             and  three separate  firearm  offenses.1    She  was  tried,

             convicted, and sentenced in the Massachusetts Superior Court

             on four  of the charged  drug offenses.  The  remaining drug

             charge and the three  firearm charges were placed  "on file"

____________________

             1  White was charged with committing three crimes on October
             29, 1982 (possession  of cocaine with intent  to distribute,
             possession of heroin, and unlawful possession of a handgun),
             and  five  crimes  on  December  16,  1982  (two  counts  of
             possession of cocaine with intent to distribute,  possession
             of  heroin  with intent  to  distribute, and  two  counts of
             unlawful possession of a handgun).

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by  that court.2   No penalties were  imposed on  any of the

             "filed" charges.

                       Citing   one   of   the   1983  drug   convictions

             (possession of cocaine  with the intent to  distribute), the

             Immigration and  Naturalization Service (INS)  ordered White

             to show cause why she should  not be deported.  Following an

             administrative hearing,  White  was found  to be  deportable

             under   241(a) of the Immigration and Nationality Act ("INA"

             or "the Act")  (recodified at 8 U.S.C.    1251(a)(2)(B)(i)).

             The   immigration   judge   denied   her   application   for

             discretionary  waiver  of  deportation  under  INA    212(c)

             (recodified at 8 U.S.C.   1182(c)).3

                       White appealed to the Board of Immigration Appeals

             ("BIA").   The BIA found  that while  the immigration  judge

             erred  in  intimating  (if  not  ruling)  that discretionary
                                 
             ____________________

             2  White pleaded guilty to the remaining drug offense before
             it was "filed."   A jury returned a guilty verdict on one of
             the firearm  charges, but  the court  placed that  charge on
             file  and did  not enter  judgment.   The other  two firearm
             charges were also "filed," without entry of a guilty plea or
             determination  of  guilt.    See    our  discussion  of  the
             Massachusetts "filing" procedure, infra.
                                               _____

             3   Congress amended INA    212(c) in 1990  to eliminate the
             availability of discretionary relief for any alien convicted
             of an aggravated felony who has served five years or more in
             prison.     The  amendment  applies   to  applications   for
             discretionary relief filed after November 20,  1991.  See De
                                                                   ___ __
             Osorio v. INS, 10 F.3d 1034 (4th Cir.  1993).  White applied
             _____________
             for a waiver of deportation in 1986.

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                                          3

relief under    212(c) was unavailable to White  because she

             had   been  found  guilty  of  serious  drug  offenses,  any

             prejudice resulting  from that  error could  be remedied  by

             applying   the    correct   legal   standard    on   appeal.

             Acknowledging White's  eligibility for  discretionary relief
                                    ___________

             despite  her serious drug  offenses, the BIA  reassessed all

             equitable   factors   relevant   to  her   application   and

             independently determined  that discretionary relief  was not

             warranted.

                       The  BIA   observed  that  "while   [the  equities

             favoring  White] may be  unusual or outstanding,  [they] are

             not  sufficient  to  counterbalance  her ser[i]ous  criminal

             misconduct."   BIA  Decision at  5.   That serious  criminal

             misconduct was described as follows:

[She]    was   convicted    of
                                           _________
                            multiple counts  of possession
                            of  cocaine  or   heroin  with
                            intent   to  distribute,   and
                                                       ___
                            possession  of  firearms,  and
                            ________________________
                            one  count  of  possession  of
                            heroin.  She  committed crimes
                                          ________________
                            involving drug trafficking and
                                                       ___
                            firearms   on   two   separate
                            ________
                            occasions              . . . .
                            [P]ossession  and  trafficking
                            in  drugs  is a  very  serious
                            adverse factor  in determining
                            whether  discretionary  relief
                            is  warranted  under   section
                            212(c).      We    find   this
                                         _________________
                            particularly     true    where
                            ______________________________

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                                          4

firearms  are involved,  given
                            ______________________
                            the potential for violence and
                            homicide they represent, as is
                            not   uncommon    where   drug
                            trafficking exists, and  which
                            together  tear  at   the  very
                            ________
                            fabric of our society.  

BIA Decision at 5 (emphasis added).

II.  The Issues
                                   II.  The Issues

                       White  challenges the  denial  of a  discretionary

             waiver of  deportability, arguing that  the BIA  erred as  a

             matter of law when it weighed her "filed" charges as if they

             had been final "convictions."  White also complains that the

             BIA gave too much weight  to certain adverse factors and too

             little weight to favorable factors in  denying relief.  Only

             the first point requires discussion.4

____________________

             4    In  concluding  that  White's  positive  equities  were
             insufficient to offset negative  factors, the BIA considered
             the evidence  before it.   To the extent  White's complaints
             are  directed to  the relative  weight  given favorable  and
             unfavorable factors,  they are  without merit.   Gouveia  v.
                                                              ___________
             INS, 980 F.2d 814, 819 (1st Cir. 1992).
             ___

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                                          5

III.  Discussion
                                   III.  Discussion

                       Because  the decision to grant or deny relief from

             deportation under    212(c)  is  a matter  committed to  the

             BIA's discretion,  we consider  only whether  the BIA  acted

             arbitrarily  or  capriciously,  or  abused  its  discretion.

             Hazzard v. INS, 951 F.2d 435, 438 (1st Cir. 1991); McLean v.
             ______________                                     _________

             INS, 901  F.2d 204, 205 (1st Cir.  1990).  The decision must
             ___

             be  upheld   "unless  it   was  made   without  a   rational

             explanation,   inexplicably   departed    from   established

             policies, or rested on an impermissible basis."  McLean, 901
                                                              ______

             F.2d at 205  (quoting Williams  v. INS, 773  F.2d 8, 9  (1st
                                   ________________

             Cir. 1985)).

                       In this  case we  need consider  only whether  the

             BIA's  decision "rested on  an impermissible basis"     that

             is,  whether  White's  "filed"  charges, particularly  those

             related   to  firearms,   were   improperly  considered   as

             convictions, and, if so, whether that error was prejudicial.
             ___________

                       Section 241(a)(11) of the  INA declares deportable

             any alien who "at any time has been convicted of a violation

             of .  . . any law or regulation of a State . . . relating to

             a controlled substance."   8 U.S.C.    1251(a)(11).  But  an

             alien so convicted, like petitioner, may nevertheless  apply

             for a waiver  of deportation under   212(c) of the Act if he

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                                          6

or she  has been a  lawful permanent resident of  the United

             States  for at least seven  years.  8  U.S.C.   1182(c); see
                                                                      ___

             Joseph, 909 F.2d  at 606 n.1; Gando-Coello v.  INS, 888 F.2d
             ______                        ____________________

             197, 198  (1st Cir.  1989).   Once statutory  eligibility is

             established, a  waiver  may  be  granted or  denied  at  the

             discretion  of the Attorney  General.  The  Attorney General

             has delegated exercise  of her discretion to the  BIA.  See,
                                                                     ___

             e.g., Katsis  v. INS, 997  F.2d 1067, 1076 (3rd  Cir. 1993),
             ____  ______________

             cert. denied, 127  L. Ed. 2d  93 (1994);  Akrap v. INS,  966
             _____ ______                              ____________

             F.2d 267, 271 (7th Cir. 1992).

A.  Convictions for Immigration Purposes
                           ____________________________________

                       As  we have held  before, federal law  defines the

             term "conviction" as it is used in the  immigration context.

             Molina v. INS, 981 F.2d 14, 19 (1st Cir.  1992) ("[T]he need
             _____________

             for  national uniformity in  the application of  federal law

             and the history of [the] word [conviction] as applied by the

             INS . .  . and the  courts, suggest that  the federal  word,

             while reflecting  basic state  usage, need  not provide  its
                   __________

             precise mirror image."); Pino v.  Nicolls, 215 F.2d 237, 243
             _______                  ________________

             (1st Cir. 1954), rev'd on other grounds, Pino v. Landon, 349
                              ______________________  ______________

             U.S. 901 (1955) (per curiam).

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                                          7

As  a general rule,  even where there  has been no

             formal  adjudication  of  guilt,  an  alien  will  still  be

             considered to have been "convicted" for immigration purposes

             if:

(1) a judge  or jury has found
                            the  alien  guilty or  he  [or
                            she]  has  entered a  plea  of
                            guilty or  nolo contendere  or
                            has admitted sufficient  facts
                            to   warrant   a   finding  of
                            guilty;

                            (2) the judge has ordered some
                            form  of punishment,  penalty,
                            or restraint  on the  person's
                            liberty to be  imposed . . . ;
                            and

                            (3) a judgment of adjudication
                            of guilt may be entered if the
                            person violates  the terms  of
                            his  [or  her]   probation  or
                            fails  to   comply  with   the
                            requirements  of  the  court's
                            order, without availability of
                            further  proceedings regarding
                            the    person's    guilt    or
                            innocence   of  the   original
                            charge.

Matter of Ozkok,  Int. Dec. 3044 at 13 (BIA 1988)5; see also
             _______________                                     ___ ____

             Molina,   981  F.2d  at   18  (applying  the   Ozkok  test).
             ______                                         _____

____________________

             5  We defer  to the BIA's interpretation  of the INA  unless
             that interpretation  is manifestly contrary to  the statute.
             See Mosquera-Perez v.  INS, 3 F.3d 553, 555  (1st Cir. 1993)
             ___ ______________________
             (citing Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)).
                     ____________________________

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                                          8

Superimposed on the  BIA's three-part test is  an additional

             requirement:    the   "conviction"  must  have   attained  a

             sufficient degree  of finality.  Matter of  Ozkok, Int. Dec.
                                              ________________

             3044  at 13 n.6 (BIA 1988)  (citing Pino v. Landon, 349 U.S.
                                                 ______________

             901 (1955) (per curiam) (conviction placed "on file"  by the

             Massachusetts Superior  Court was  insufficiently final  for

             deportation  purposes)).     This  finality  requirement  is

             satisfied if direct  appellate review of the  conviction has

             either been exhausted  or waived.  Id.;  Martinez-Montoya v.
                                                __    ___________________

             INS,  904  F.2d 1018  (5th  Cir.  1990);  see also  Morales-
             ___                                       ___ ____  ________

             Alvarado v. INS, 655 F.2d 172 (9th Cir. 1981).
             _______________

                       It  is  apparent,  and the  INS  seems  willing to

             concede,6 that  White's "filed" criminal  charges, including

             the  three charges related  to unlawful  firearm possession,

             simply  do  not  qualify  as  "convictions"  for immigration

             purposes.  Under Massachusetts law the "filing"  of a charge

             at any stage completely  suspends the adjudicative  process,

             including the defendant's  right to appeal, until  such time

             as the court  reactivates or makes some  further disposition

             of the  case.  See  Commonwealth v. Delgado, 367  Mass. 432,
                            ___  _______________________

             438, 326 N.E.2d 716, 722 (Mass. 1975).  In White's case,  no

             punishment  or  penalty  or restraint  on  liberty  has been
                                 
             ____________________

             6  See Respondent's Brief at 27-28.
                ___

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                                          9

imposed on any  of the filed charges, nor  has she exhausted

             or  waived   her   right   to   direct   appellate   review.

             Accordingly,  the BIA should  not have considered  the filed

             charges  as "convictions" in deciding whether to grant White

             discretionary  relief from deportation.  Having done so, the

             BIA erred.

B.  Prejudicial Error
                                    _________________

                       We turn now to  a more troublesome question.   Was

             White  prejudiced by the  error?  Improper  consideration of

             favorable  or unfavorable factors  by the BIA  may sometimes

             constitute  abuse of  discretion,  and  remand is  generally

             required if the  mistake could have affected  the balance of

             equities upon  which the decision  rests.   See Martinez  v.
                                                         ___ ____________

             INS,  970 F.2d 973, 975 (1st  Cir. 1992) (citing Jen Hung Ng
             ___                                              ___________

             v.  INS, 804  F.2d 534,  540  (9th Cir.  1986)); See,  e.g.,
             _______                                          ___   ____

             Yepes-Prado v. INS, No. 91-70114, 1993 U.S. App. LEXIS 29444
             __________________

             at *4 (9th Cir.  Oct. 8, 1993) (as  modified); Shahandeh-Pey
                                                            _____________

             v. INS, 831  F.2d 1384, 1389 (7th  Cir. 1987).   However, we
             ______

             also recognize that the BIA's decision need not be disturbed

             on appeal if the error is "marginal."  See, e.g., Akrap, 966
                                                    ___  ____  _____

             F.2d   at  272   n.9  (declining   to   reverse  denial   of

             discretionary relief where BIA mistakenly assumed petitioner

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had six drug convictions when  in fact he had five); Spencer
                                                                  _______

             Livestock Comm'n  v. Dep't  of Agriculture,  841 F.2d  1451,
             __________________________________________

             1458 (9th Cir. 1988) (affirming administrative judgment even

             though  two consent  orders  were  improperly considered  as

             evidence  of  trade  violations,  where  other  evidence  of

             violations existed).

                       White  is  undeniably  deportable, and  the  BIA's

             mischaracterization of  her filed charges  did not  preclude

             consideration  for discretionary relief.7  She concedes that

             in reviewing an application for discretionary relief the BIA

             may consider any evidence of bad character or undesirability

             as a permanent  resident.  See Matter of  Edwards, Int. Dec.
                                        ___ __________________

             3134 at  8 (BIA 1990)  (listing adverse factors  relevant to

             discretionary determinations).    Here,  the  BIA  certainly

             could have  considered her  filed charges  as some  evidence
                                                           ____

             weighing against discretionary  relief.  See,  e.g., Bustos-
                                                      ___   ____  _______

             Torres v. INS, 898 F.2d 1053, 1055 (5th Cir. 1990) (evidence
             _____________

             admissible if probative and fundamentally fair).  After all,

             White pleaded guilty to the  filed drug charge and was found

             guilty by a jury on one of the filed firearm charges.  Given

____________________

             7    Cf.  Marino  v.  INS,  537  F.2d  686  (2d  Cir.  1976)
                  __   _______________
             (conviction precludes eligibility for adjustment of status);
             Martinez-Montoya  v.  INS,  904 F.2d  1018  (5th  Cir. 1990)
             _________________________
             (conviction precludes eligibility for legalization). 

                                         -11-
                                          11

that  evidence and the  number, seriousness, and  recency of

             White's  unquestionably final  drug convictions, as  well as

             the other adverse factors found, it is difficult to perceive

             how the  BIA's mistake  could have  affected the  balance of

             equities on which the denial rested.

                       The  BIA  found   White's  convictions  for   drug

             possession  and drug  trafficking  to  be  "a  very  serious

             adverse   factor"  which   could  be   offset   only  by   a

             demonstration of  "unusual or  outstanding  equities."   BIA

             Decision at 4.  That  these drug convictions should weigh so

             heavily  against petitioner's  favorable  equities, the  BIA

             concluded,  was  "particularly   true  where  firearms   are

             involved."  Id. at 5  (emphasis added).  The record contains
             ________    __

             ample reliable evidence of White's simultaneous  involvement

             with  drugs and  firearms.   The BIA's  conclusion  that the

             severity  of petitioner's  drug convictions was  enhanced by

             her association  with firearms is a finding justified by the

             record and well within the boundaries of its discretion.  To

             be sure, the  filed charges were erroneously referred  to as

             "convictions,"  but the  BIA did  not  rely on  the fact  of

             firearm "convictions" per se in denying relief; it relied on

             White's conduct involving drugs and guns.  
                     _______

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                                          12

IV.  Conclusion
                                   IV.  Conclusion

                       The  distinction between  proof of guilt  by final

             conviction and  by some less reliable means  is an important

             one  to maintain.    But here,  that  distinction played  no

             discernible role  in  the  outcome.   The  BIA's  error  was

             marginal and  harmless under  these facts.   See Liwanag  v.
                                                          ___ ___________

             INS, 872  F.2d 685,  687  n.2 (5th  Cir. 1989)  (no need  to
             ___

             remand a  case where  there is  little  likelihood that  the

             agency would have reached a different conclusion but for the

             error); Akrap, supra.  
                     _____  _____

                       The denial of discretionary relief is affirmed.
                                                             ________

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