
USCA1 Opinion

	




          August 16, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2393                            MARCO ANTONIO DE OLIVEIRA MOURA,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                 ____________________                          ON PETITION FOR REVIEW OF AN ORDER                         OF THE BOARD OF IMMIGRATION APPEALS                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            John H. Ruginski, Jr. on brief for petitioner.            _____________________            Frank W. Hunger, Assistant Attorney General, Lisa Dornell,  Acting            _______________                              ____________        Assistant  Director, Office  of Immigration  Litigation, and  Alice M.                                                                      ________        King, Attorney, Office of Immigration Litigation, Civil Division, U.S.        ____        Department of Justice, on brief for respondent.                                 ____________________                                 ____________________                      Per Curiam.   Petitioner Marco Moura (Moura)  seeks                      __________            judicial review  of a  decision by the  Board of  Immigration            Appeals  (BIA) that  effectively  denied Moura  discretionary            relief from deportation under 8 U.S.C.  1182(c).1  We  affirm            pursuant to Loc. R. 27.1.                                          I.                      Moura  is  a 26-year  old  native  of Portugal  who            entered the United States as  a lawful permanent resident  on            June 14,  1980, when  he was  12 years old.   He  returned to            Portugal to visit  his father on  two occasions between  1980            and 1984.   Moura last entered  the United States on  July 5,            1984 and has maintained lawful residence since that date.                        On October  22, 1987, Moura was  convicted in Rhode            Island superior court of two  counts of breaking and entering            a dwelling without the consent of the owner and one  count of            entering  a building with the  intent to commit  larceny.  He            received concurrent 36-month sentences  on each count.  Moura            was only required to serve the first 6 months in prison.  The                                            ____________________            1.  8 U.S.C.  1182(c) grants the Attorney  General discretion            to admit certain  aliens who may  otherwise be excluded  from            admission  into  the  United  States  where  the  aliens  are            returning  to  a  lawful  unrelinquished  domicile  of  seven            consecutive years.   The BIA has  determined that, "a  lawful            permanent resident  is prima  facie eligible for  relief from            deportation under ... [8 U.S.C.  1182(c)], even though he has            not proceeded  abroad subsequent  to the acts  which rendered            him  deportable."   Matter  of Edwards,  Int. Dec.  3134 (BIA                                __________________            1990).  Thus, aliens  who maintain lawful permanent residence            in the  United States  for seven  consecutive years may  seek            relief from  deportation  orders  under  8  U.S.C.   1182(c).            Lozada v. I.N.S., 857 F.2d 10, 11 n.1 (1st Cir. 1988).                   ______    ______            remaining  terms  were  suspended  and Moura  was  placed  on            probation for 30 months.2                       On  February  24,  1988  Moura  was  charged   with            attempted breaking and  entering, conspiracy, and  possession            of  marijuana.   All  of  these  offenses were  committed  on            September 18, 1987, i.e., while the charges that  resulted in            his  October 22, 1987 convictions  were still pending.  Moura            was  convicted  of  these  additional charges  on  April  21,            1988.3    One month later, the Immigration and Naturalization            Service (INS) commenced deportation proceedings by filing  an            order to show cause (OSC) why Moura should not be deported as            an  alien convicted  of  two crimes  of  moral turpitude  not            arising out  of a single scheme of criminal conduct.  The OSC            was based on two of Moura's October 22, 1987 convictions.                      On August  1, 1988, a deportation  hearing was held            at which  the INS  amended its OSC  to charge that  Moura was            deportable as an  alien who  had committed a  crime of  moral            turpitude  within five  years  of entry  and  had received  a            sentence  of at least one year and  had also violated the law            relating to the illegal possession of marijuana.  The charges            were  based  on  Moura's  October  22,  1987  conviction  for                                            ____________________            2.  Moura testified  that  he  was  first  incarcerated  from            roughly October 1987 to March 1988.            3.  Moura received suspended sentences and probation terms on            each of these counts that were to run concurrent with the 36-            month sentences that had been previously imposed.                                           -3-            breaking and entering with  the intent to commit  larceny and            his April  21, 1988  conviction for possession  of marijuana.            See 8  U.S.C.  1251(a)(4),  1251(a)(11)(1988).4   Moura,  who            ___            was   represented  by  counsel,  conceded  deportability  and            expressed his intent to file an application for discretionary            relief  under  8  U.S.C.   1182(c).   The  Immigration  Judge            ordered Moura to  file his application  by September 1,  1988            and scheduled a waiver hearing for October 5, 1988.                      On  August  9,  1988,  eight  days   after  Moura's            deportation  hearing,  Moura  was  arrested  for  his  second            possession  of marijuana offense.   (R. 247-48).   He married            one  April Akstin,  a United  States citizen,  on August  29,            1988.  (R.   278).    Shortly  thereafter   Moura  filed  his            application for discretionary relief from deportation.                        On  October  31,  1988,  Moura   was  arrested  for            breaking and entering with the intent to commit larceny.  (R.            137, 233, 239).  He failed to appear at his arraignment and a            bench warrant issued for  his arrest.   (R. 235).  Moura  was            arrested on December  20, 1988  at the  Immigration Court  in            Boston  when   he  appeared   for  another  hearing   in  his            deportation    proceedings.        The   Immigration    Judge            administratively closed the proceedings, noting that the case                                            ____________________            4.  8  U.S.C.  1251(a)(4) was  recodified by  the Immigration            Act  of 1990  as  8 U.S.C.   1251(a)(2)(A)(i).   Similarly, 8            U.S.C.     1251(a)(11)   was    recodified   as    8   U.S.C.             1251(a)(2)(B)(i). See  Pub.L.No. 101-649 (1990).                                ___                                         -4-            could be  recalendared after Moura was  released. (R. 50-53).            On January  9,  1989,  Moura  was  convicted  of  his  second            possession  of marijuana  offense  and the  October 31,  1988            breaking and entering charge.   He was sentenced to  8 years'            imprisonment, of which the first 2  and 1/2 years were to  be            served in prison.  The remaining term was suspended and Moura            was  placed on  probation for  5  and 1/2  years.   Moura was            incarcerated from  approximately  December 23,  1988  through            December, 1990.5                        Shortly   after   Moura's   release  from   prison,            deportation proceedings  were  reopened.6    Moura  filed  an            updated  application for  relief  from  deportation.    Three            separate hearings  were held between March  1992 and December            28, 1992,  at which  Moura, his  mother, and  his girlfriend,            testified.7   On  December  28, 1992,  the Immigration  Judge            issued a decision which  found that Moura's deportability had            been  established by  clear  and convincing  evidence  (i.e.,            Moura's  concessions)  and  denied  Moura's  application  for                                            ____________________            5.  Moura's first son  was born  while Moura  was in  prison.            The mother divorced Moura on May 30, 1990. (R. 277).            6.  A deportation  hearing was  convened on January  9, 1991,            which  resulted in  a  continuance.   Moura was  subsequently            directed to  file an updated application  for a discretionary            waiver.   He failed to do  so and his  application was deemed            abandoned.  Moura was ordered deported on April 19, 1991. His            attorney filed a motion to reopen the deportation proceeding,            which was allowed on October 16, 1991.              7.  Moura's  girlfriend  gave  birth  to his  second  son  on            October 30, 1992. (R. 221).                                          -5-            discretionary relief.   Moura appealed  through his  counsel,            who specifically indicated  in the notice of appeal  that she            intended  to file  a brief.   On  November 5,  1993, the  BIA            issued a  per curiam  decision that affirmed  the Immigration            Judge.   Although  the  BIA noted  that  Moura's counsel  had            failed  to  file  a brief,  it  reviewed  the  record in  its            entirety and  found that  the Immigration Judge  had properly            weighed all relevant factors in  denying Moura's application.            In view of this finding and  the fact that Moura did not show            any meritorious reasons for  his appeal, the BIA  adopted the            Immigration  Judge's decision as  its own.   Moura then filed            this timely petition for judicial review.                                         II.                      In determining  whether a  resident alien  merits a            waiver of deportation  under 8  U.S.C.  1182(c),  immigration            officials  "must  balance  the  'social  and humane'  factors            supporting  the application against  adverse factors favoring            deportation."  Gouveia v. I.N.S., 980 F.2d 814, 816 (1st Cir.                           _______    ______            1992).  Factors which may support a waiver include:                      (1) family ties within the United States;                      (2) residence of long duration, particularly                            when begun at an early age;                      (3) evidence of hardship to family members                            should deportation occur;                      (4) military service;                      (5) a steady employment history;                      (6)  the existence  of  property  or  business                 ties;                      (7) community service;                      (8) proof of genuine rehabilitation if the                              alien has a criminal record;                                         -6-                      (9) any other evidence tending to show the                              petitioner's good character.            Gouveia, 980 F.2d at  816; Matter of Edwards, Int.  Dec. 3134            _______                    _________________            (BIA 1990); Matter of Marin, 16 I. & N. Dec. 581, 584-85 (BIA                        _______________            1978).  Adverse factors include:                      (1) the nature and underlying circumstances of                          the ground(s) for exclusion;                      (2) the presence of additional significant                              violations of United States immigration                             laws;                      (3) the existence of a criminal record and its                          nature, recency and seriousness; and                      (4) any other evidence indicative of the                                alien's bad character or undesirability as                          a permanent resident.            Matter of Marin, id. at 584.  Each case must be judged on its            _______________  ___            own  merits and  the alien  seeking the  discretionary waiver            bears the  burden of proof.  Id.; Hazzard v. I.N.S., 951 F.2d                                         ___  _______    ______            435, 438 (1st Cir. 1991).                      The  record discloses  that Moura  has continuously            resided in this  country for the past  10 years and  that his            lawful permanent residence status began at a relatively early            age  (12).   His mother  and two  children are  United States            citizens, but there was  no evidence that Moura's deportation            would result  in any  particular hardship to  them.   Moura's            mother is married and  does not rely on her  son for economic            support.  At the  time of the deportation hearings  Moura was            not  paying child  support  for his  first  son, although  he            repeatedly indicated that court proceedings might result in a            support  order.  And while  Moura resided with his girlfriend                                         -7-            and contributed to support her and their child, they were not            married at the  time of the deportation hearings  nor holding            themselves out as husband and wife.8                        Moura  concedes  that  his  employment  history  of            working  for others is sporadic.    Between  his release from            prison  in 1990 and the March 3, 1992 deportation hearing, he            had  not held a steady job.   Between 1985 and 1987, prior to            his  first incarceration, he held  brief jobs as  a floor boy            and laborer, earning a maximum of a few  hundred dollars.  At            his March  3, 1992 deportation hearing,  Moura testified that            he was working under the table. (R. 158).  He later started a            painting and roofing business with a friend.  By  the time of            his final  hearing he had several contracts for work.  He had            never filed tax  returns.  (R. 153, 223).   Moura enrolled in            an auto  body technician training  program in March  1992 and            expected to graduate in October 1993. (R. 196, 219-220).                        Against  these  factors   stood  Moura's   criminal            history, which  began as a juvenile.   As a result  of a plea            agreement,  several juvenile  offenses were  dropped  so that            Moura could go to live  with his father in Portugal and  have            his  father "straighten ... [him]  out."  (R.  96-97).  Moura            began using marijuana  when he was  fifteen and graduated  to            cocaine  by the  time  he was  seventeen.   He  developed  an                                            ____________________            8.  Moura's girlfriend testified that  they expected to marry            but had not set a date because they were awaiting the outcome            of the deportation hearings. (R. 210-11).                                         -8-            addiction and supported his habit by breaking into houses and            trading  stolen goods for cocaine.   R. (155-57).   After his            first conviction on October 22, 1987, Moura served six months            in  prison, where he incurred 3 or 4 disciplinary reports for            fighting  and smoking.  (R.  102-03, 117).   He committed the            offenses which  culminated in  his April 21,  1988 conviction            while the  initial breaking  and entering charges  were still            pending.   Moura was  arrested for  his second  possession of            marijuana offense and his  final breaking and entering charge            while  he was on probation.    During  his last incarceration            Moura  received additional disciplinary  reports for fighting            and using marijuana.   And while Moura has not  been arrested            for a  felony since his last conviction, he was fined for two            misdemeanors (disorderly conduct and driving with a suspended            license) in April, 1991 and January, 1992.  (R. 229-30).                                                          The Immigration  Judge fully considered  all of the            aforementioned factors  and ruled that,  in view of  the fact            that  Moura  had been  convicted  of  several serious  crimes            resulting from an addiction to cocaine, Moura was required to            show  unusual  or  outstanding  equities in  order  to  merit            discretionary  relief.9   He  then concluded  that Moura  had                                            ____________________            9.  A  showing  of unusual  or  outstanding  equities may  be            required where the alien  has been convicted of  a succession            of  criminal  acts  which  establish  a  pattern  of  serious            criminal  misconduct, whether  or  not those  crimes involved            controlled  substances.  However,  such a  showing  does  not                                         -9-            established outstanding equities, but as  the adverse factors            far  outweighed the social  and humane  considerations, Moura            did not deserve  a waiver  of deportation.   The BIA  adopted            this decision.                      Moura argues  that the decisions of the Immigration            Judge   and  the  BIA  constitute  error   and  an  abuse  of            discretion.   He  maintains  that the  factors which  favored            granting  him  discretionary  relief  clearly   outweigh  the            adverse  factors, stressing  that  all of  his felonies  were            committed during a  3-year period  and that he  has not  been            arrested for a felony since 1989.                        We  review  waiver   decisions  only  to  determine            whether the BIA "acted arbitrarily or capriciously, or abused            its discretion."  White v. I.N.S., 17 F.3d 475, 478 (1st Cir.                              _____    ______            1994).  We must uphold the BIA unless its decision "'was made            without  a rational  explanation, inexplicably  departed from            established policies, or rested on an impermissible  basis.'"            Id. (citation  omitted).   Moura does  not  contend that  the            ___            BIA's decision departed from  established policies or  rested            on  an impermissible  basis.   He  says that  the Immigration            Judge committed a clear error  in concluding that the adverse            factors outweighed  the favorable  ones.  We  have repeatedly            rejected similar arguments.   See, e.g., White  v. I.N.S., 17                                          ___  ____  _____     ______                                            ____________________            require  the INS to grant a waiver of deportation. See Matter                                                               ___ ______            of Edwards, supra.              __________  _____                                         -10-            F.3d  475, 478  n.4  (1st Cir.  1984)(complaints directed  to            relative weight given favorable and unfavorable  factors held            without merit);  Martinez v. I.N.S.,  970 F.2d 973,  975 (1st                             ________    ______            Cir.  1992)(same).   We see  no reason  to disturb  the BIA's            decision  on this  record. Moura  has a  significant criminal            record,  marked by repeated thefts and drug use.  Neither his            employment  record nor  his family  ties appear  particularly            strong.10   We thus  agree that  Moura failed  to demonstrate            that he merits discretionary relief.                      Moura  also  contends   that  his  former   counsel            rendered  him ineffective  assistance  by failing  to file  a            brief with the BIA.   While there is no  constitutional right            to counsel in deportation proceedings, aliens are entitled to            due process.   Lozada v.  I.N.S., 857  F.2d 10, 13  (1st Cir.                           ______     ______            1988).   "Ineffective assistance of counsel  in a deportation            proceeding is a denial of due process only 'if the proceeding            was so fundamentally unfair that the alien was prevented from            reasonably  presenting his case.'"  Ramirez-Durazo v. I.N.S.,                                                ______________    ______            794 F.2d 491, 499-500 (9th Cir. 1986)(citation omitted).  "In            due process  challenges, there  must always be  a showing  of            prejudice."   Colindres-Aguilar v. I.N.S., 819  F.2d 259, 261                          _________________    ______            (9th  Cir. 1987).  See also Mohsseni Behbahani v. I.N.S., 796                               ___ ____ __________________    ______                                            ____________________            10.  To  be sure, Moura appears to have made a genuine effort            to remain  self-employed  and  out  of jail  since  his  last            incarceration.   But  Moura's  attempt at  rehabilitation has            been short-lived compared to his criminal history.                                          -11-            F.2d  249,  251   (9th  Cir.  1986)  (rejecting   ineffective            assistance claim  where no prejudice shown);  Figeroa v. U.S.                                                          _______    ____            I.N.S., 886 F.2d 76,  78-81 (4th Cir. 1989); Mantell  v. U.S.            ______                                       _______     ____            Department  of   Justice,  798   F.2d  124,  128   (5th  Cir.            ________________________            1986)(same).                        Where "the  BIA [has] considered the  merits of the            case  and fully  reviewed  the record...[and]  [t]here is  no            indication that anything in a  brief could have affected  the            final result[,]" the  failure to  file a brief  with the  BIA            does  not constitute  a  violation of  due process.  Ramirez-                                                                 ________            Durazo, 794 F.2d at 501.  We think that this language applies            ______            fully in the present case.  The Immigration Judge  in his own            decision adequately set forth  the pertinent circumstances in            a  decision  that  is  nineteen pages  in  length  and  deals            extensively with  the underlying  facts and the  reasoning of            the Immigration  Judge.   Given  the  rather  straightforward            standards to be applied,  a review by the BIA on  this record            is a straightforward  task and  there is no  reason to  think            that the failure to  restate the facts or argue about them in            a  brief to the BIA  affected the outcome.   Accordingly, the            petition for  review is  denied and  dismissed and  the BIA's                                     ______      _________            order is affirmed.                     ________                                         -12-
