
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-2309                                   BING FENG CHEN,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                              _________________________                          PETITION FOR REVIEW OF AN ORDER OF                           THE BOARD OF IMMIGRATION APPEALS                              _________________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                              _________________________               Carlos Magaletta, with whom Magaletta & Associates, P.C. was               ________________            ____________________________          on brief, for petitioner.               Joseph F. Ciolino, Office of  Immigration Litigation, United               _________________          States Dep't  of Justice, with  whom Frank  W. Hunger,  Assistant                                               ________________          Attorney  General,  and  David  M.  McConnell,  Acting  Assistant                                   ____________________          Director, Office  of Immigration  Litigation, were on  brief, for          respondent.                              _________________________                                    June 20, 1996                              _________________________                    SELYA, Circuit  Judge.   Petitioner, Bing Feng  Chen, a                    SELYA, Circuit  Judge.                           ______________          native  and citizen  of  the People's  Republic  of China,  seeks          judicial review of an  order of the Board of  Immigration Appeals          (the Board) directing his deportation and, concomitantly, denying          his  request  for  a  waiver  of  excludability.   Discerning  no          cognizable error in the  administrative proceedings, we leave the          Board's order intact.                                          I                                          I                    Petitioner,  then twenty-three  years old,  entered the          United States as a  lawful permanent resident in 1984  along with          his parents and his brother.   The family settled in Boston.   In          1987, California  authorities charged petitioner  with robbery in          the second  degree and  false imprisonment.   The record  reveals          that  petitioner and two  accomplices undertook to  rob a jewelry          store.   Petitioner  brandished  a firearm  (a  fully loaded  .38          calibre  handgun)   during  the  robbery,  holding   the  store's          employees and  a half-dozen customers  at bay.  The  value of the          property taken exceeded  $25,000.  Petitioner pled  guilty to the          charges and the court sentenced him to five years'  imprisonment.          He  served more than half the sentence (including credit for time          spent in pretrial detention) before obtaining a parole.                    On  May 27,  1992, the  Immigration and  Naturalization          Service  (INS) took steps to deport petitioner because he had (a)          committed a  crime involving moral turpitude within five years of          his  lawful  entry into  the  United States,  (b)  been convicted          thereof  by  a court  of  competent  jurisdiction,  and (c)  been                                          2          incarcerated on account of that conviction for a period in excess          of one year.  See  8 U.S.C.   1251(a)(2)(A)(i).  At  a subsequent                        ___          hearing on  a show-cause order,  an Immigration Judge  (IJ) found          petitioner  subject to  deportation and,  inter alia,  denied his                                                    _____ ____          application for a waiver of excludability under section 212(c) of          the  Immigration  and  Nationality   Act,  8  U.S.C.     1182(c).          Petitioner  prosecuted  an administrative  appeal.    In a  terse          opinion dated November 13, 1995, the Board denied relief.  Though          conceding deportability, petitioner now  seeks judicial review of          the denial of the waiver.                                          II                                          II                                          A                                          A                    In his  own words, petitioner's first  argument is that          the Board deprived him of due process by  "fail[ing] to state the          standard  of review it used in reviewing the decision of the IJ."          Whatever  constitutional  force this  standard-of-review argument          once may have generated, events have passed it by.                    The genesis of the argument can be traced to an opinion          of the Court of  Appeals for the Seventh Circuit,  Ortiz-Salas v.                                                             ___________          INS, 992 F.2d 105 (7th Cir. 1993), in which Judge Posner, writing          ___          for the panel, noted the Board's habitual silence  concerning the          standard that it  used when reviewing a discretionary decision of          an IJ (such as a decision to grant or deny a waiver under section          212(c)).  See id. at 108.  In response to the Board's claim  that                    ___ ___          it  had  a right  to inscrutability  and  need not  advertise its          standard of review, Judge Posner wrote:                                          3                    That won't do.   It is  an undue hardship  to                    require the alien to guess at the standard of                    review that will be applied to his appeal . .                    . .  [a]nd it is irresponsible  for the Board                    to  fail  to define  its relationship  to the                    immigration judges.          Id. at 107.          ___                    If Ortiz-Salas marked  the end of  the line, this  case                       ___________          might present difficulties.  But the occurrence of an intervening          event removes the issue  from the case.   On September 13,  1994,          the  Board decided Matter of  Burbano, Interim Decision 3229 (BIA                             __________________          1994),  in which it heeded  the message of  the Ortiz-Salas court                                                          ___________          and made clear that whenever "the  Board engages in a review of a          discretionary determination  by an immigration judge,"  the Board          relies  upon  its  "own  independent  judgment  in  deciding  the          ultimate  disposition of  the case."   Id.,  slip op.  at 2.   To                                                 ___          eliminate all doubt, the  Board added that it "do[es]  not employ          an  abuse of  discretion  standard when  reviewing  discretionary          determinations of immigration judges."  Id. at 3. Burbano    thus                                                  ___       _______          fills the gap that troubled the Ortiz-Salas court.                                          ___________                    The opinion in Burbano antedated the Board's opinion in                                   _______          this case by well over a year.  The Board's express invocation of          Burbano (via  citation to it)  in the text  of the opinion  below          _______          makes manifest  the untenability of the  petitioner's claim under          the  circumstances  now  extant.    Petitioner,  to  his  credit,          acknowledges  as  much in  his  reply brief.    Consequently, the          argument is by the boards.                                          B                                          B                    Petitioner's  next asseveration relates to the adequacy                                          4          of the Board's  findings.  It is true,  as petitioner points out,          that for the most part  the Board did not write its  own analysis          of   the   positive  and   negative   factors   undergirding  its          determination to  deny the  requested waiver.   It did,  however,          make  clear that it had  reviewed the record,  the IJ's decision,          and petitioner's  contentions on  appeal, and it  concluded that,          with one exception,1  the IJ  "gave proper  consideration to  the          discretionary  factors  concerning  [petitioner's]   request  for          section 212(c) relief."   The Board also  indicated its agreement          that  petitioner  had  not  demonstrated equities  sufficient  to          overbalance  the significant adverse  factors associated with his          involvement  in the  armed robbery,  and it  opted to  affirm the          denial of the  waiver "for  the reasons specified  in [the  IJ's]          decision."                    Petitioner complains that the Board's opinion is flawed          because  it is conclusory in nature.   He says in effect that the          Board, when  exercising independent  review, must find  the facts          afresh,  and that  it neglected  to do  so here.   We  think that          petitioner overstates the Board's obligation.                    As a  general  proposition,  if  a  reviewing  tribunal          decides that the facts  and evaluative judgments prescinding from          them have been  adequately confronted and correctly resolved by a                                        ____________________               1The Board disclaimed any reliance on hypothetical scenarios          set forth by  the IJ in his decision.   The Board explained that,          though  it agreed  with  the IJ  that  the petitioner's  criminal          activity,  namely, his robbery of  a store with  a loaded weapon,          was  "particularly  disturbing," nonetheless,  "the reprehensible          nature  of  this crime  speaks for  itself,  without any  need to          speculate as to the feelings of the victims involved."                                          5          trial  judge or hearing officer, then the tribunal is free simply          to adopt those findings   as long as its opinion or order clearly          indicates that it gave individualized attention to the  case and,          upon  reflection, elected to adopt  the trier's words rather then          to write anew.  See  Alaelua v. INS, 45 F.3d 1379, 1381 (9th Cir.                          ___  _______    ___          1995);  Castaneda-Suarez v.  INS,  993 F.2d  142,  146 (7th  Cir.                  ________________     ___          1993);  cf. In  re San Juan  Dupont Plaza Hotel  Fire Litig., 989                  ___ ________________________________________________          F.2d 36, 38 (1st Cir.  1993) ("Where, as here, a trial  court has          produced a  first-rate work product, a  reviewing tribunal should          hesitate  to  wax  longiloquent  simply  to  hear  its  own words          resonate.").                    These principles hold true in an administrative  appeal          of this genre.  To be sure, the Board is obliged to weigh all the          pertinent factors  (both favorable  and unfavorable), to  exhibit          due  consideration  for the  universe  of  weighted factors  when          tallying the  equities, to exercise independent  judgment, and to          state  plainly its reasons for  granting or denying  relief.  See                                                                        ___          Alaelua, 45 F.3d at 1382; Martinez v. INS, 970 F.2d 973, 974 (1st          _______                   ________    ___          Cir. 1992).  And, moreover, the Board's opinion must reflect that          it has carried  out these obligations    but the  Board need  not          write  a long  essay merely  to  prove its  mettle.   Cf.,  e.g.,                                                                ___   ____          Martinez, 970 F.2d  at 976  (concluding that the  Board need  not          ________          "address  specifically each  claim  the petitioner  made or  each          piece  of evidence  the  petitioner  presented").    To  use  the          vernacular,  if the Board's  view is that the  IJ "got it right,"          the  law does  not  demand that  the  Board go  through  the idle                                          6          motions of  dressing the  IJ's findings in  its own  prose.2   In          short,  de  novo review    and  what  the Board  chooses  to call          "independent review" is neither more nor less than de novo review            does not require the Board to reinvent the wheel.                    On  this basis, we join eight of our sister circuits in          ruling  that the Board need not  write at length merely to repeat          the  IJ's  findings  of fact  and  his  reasons  for denying  the          requested  relief,  but,  rather,  having   given  individualized          consideration  to a  particular case,  may simply  state that  it          affirms  the  IJ's decision  for the  reasons  set forth  in that          decision.3  See  Prado-Gonzalez v.  INS, 75 F.3d  631, 632  (11th                      ___  ______________     ___          Cir. 1996); Gomez-Mejia v. INS, 56 F.3d 700, 702 (5th Cir. 1995);                      ___________    ___          Urukov  v. INS, 55 F.3d 222, 227-28  (7th Cir. 1995); Alaelua, 45          ______     ___                                        _______                                        ____________________               2In his reply brief, petitioner cites two precedents that he          claims  repudiate this view.  His reliance is mislaid.  One case,          Perez v.  INS, 643 F.2d 640 (9th Cir.) (per curiam), op. am., 665          _____     ___                                        ___ ___          F.2d 269 (9th Cir.  1981), cert. dismissed, 459 U.S.  983 (1982),                                     _____ _________          was not a  case in which the Board adopted the findings of an IJ,          but, rather, a case in  which the Board, in violation of  its own                                                   ________________________          regulations, neglected to  indicate on the record "the factors it          ___________          considered in concluding  that [the alien] failed  to establish a          prima  facie  case  of  extreme   hardship  [under  8  U.S.C.              _____  _____          1254(a)(1)]," thereby  frustrating judicial review.   Id. at 641.                                                                ___          In  the second case,  Anderson v. McElroy, 953  F.2d 803 (2d Cir.                                ________    _______          1992),  the Court  found an  abuse of  discretion in  the Board's          summary refusal to stay deportation pending the disposition of an          alien's motion to reopen, notwithstanding the INS' acknowledgment          of a significant change in circumstances and its request that the          Board  vacate the  deportation  decision and  remand for  further          proceedings.  See id. at 805-06.  Neither case has any bearing on                        ___ ___          the issue at hand.               3Where,  as   here,  the  Board  adopts   the  findings  and          conclusions of the  IJ, the IJ's rescript serves de  facto as the          Board's articulation of its ratio decidendi.  For that reason, we                                      _____ _________          henceforth  refer to  the  findings and  conclusions  of the  IJ,          adopted by  the Board, as if  the Board had authored  them in the          first instance.                                          7          F.3d  at 1382-83; Maashio  v. INS, 45  F.3d 1235, 1238  (8th Cir.                            _______     ___          1995);  Gandarillas-Zambrana  v. BIA,  44  F.3d  1251, 1255  (4th                  ____________________     ___          Cir.), cert. denied, 116 S. Ct. 49 (1995); Panrit v. INS, 19 F.3d                 _____ ______                        ______    ___          544, 546 (10th Cir.  1994); Arango-Aradondo v. INS, 13  F.3d 610,                                      _______________    ___          613  (2d Cir. 1994); see  also De Leon v.  INS, 547 F.2d 142, 149                               ___  ____ _______     ___          (1st  Cir. 1976)  (applying this  principle sub  silentio), cert.                                                      ___  ________   _____          denied, 434 U.S. 841 (1977).          ______                    Here, the Board's individualized  attention to the case          is apparent.  See, e.g., supra  note 1.  We hold, therefore, that                        ___  ____  _____          the  Board acted  within its proper  purview when  it adjudicated          petitioner's case  and resolved the  appeal by adopting  the IJ's          findings and conclusions.                                          C                                          C                    As our journey winds down, we reach  the bedrock issue:          the  supportability  of  the  Board's denial  of  section  212(c)          relief.  The fact  that the Board's findings and  conclusions are          adopted  rather than  original does  not  affect our  standard of          review.  As in any  other section 212(c) case, we  need determine          only whether  the decision is arbitrary, capricious,  or an abuse          of discretion.   See generally Gouveia v.  INS, 980 F.2d 814, 817                           ___ _________ _______     ___          (1st Cir. 1992) (elucidating standard of review).                      Waivers  of  deportation  are not  profligately  to  be          granted.    In deciding  whether  to  exercise its  discretionary          authority,  the  Board  "must  balance the  `social  and  humane'          factors   supporting  the  application  against  adverse  factors          favoring  deportation."   Id.  at  816.    When  the  ground  for                                    ___                                          8          deportability  is the  alien's commission of  a serious  crime, a          high hurdle blocks the  path to section 212(c)  relief.  In  such          circumstances  "it is  incumbent  upon a  petitioner not  only to          demonstrate  that  favorable  factors  preponderate  but also  to          present `unusual or outstanding equities'" in order  to justify a          waiver.   Id.; accord Martinez, 970  F.2d at 976; Hazzard v. INS,                    ___  ______ ________                    _______    ___          951 F.2d  435, 438 (1st Cir.  1991).  The armed  robbery of which          petitioner stands  convicted indubitably  qualifies as  a serious          crime within this rubric.                    In this  instance, the Board examined  all the relevant          factors,  applied   the   appropriate  standard,   decided   that          petitioner's proffer lacked persuasive force, and concluded  that          petitioner had failed  to make out a sufficiently convincing case          for  an affirmative exercise of  discretion.  On  this record, we          have no  warrant to  second-guess the  Board's  conclusion.   See                                                                        ___          Martinez, 970 F.2d at 974 (explaining that rejection of a section          ________          212(c)  waiver request will be upheld "unless it was made without          a  rational explanation,  inexplicably departed  from established          policies,  or  rested  on  an  impermissible  basis")   (citation          omitted).                    Of  course, the credit side of the ledger is not empty.          Petitioner  had a  decade of  lawful permanent  residence, family          ties in this country, part-ownership in a house, some involvement          with  community  service, and  a  chiaroscuro  record of  gainful          employment.    At  bottom,  however,  these   are  garden-variety          equities; they simply do  not rise to a level  that would warrant                                          9          the appellation "unusual" or "outstanding."  See, e.g., Henry  v.                                                       ___  ____  _____          INS, 74  F.3d  1,  7  (1st  Cir. 1996)  (finding  no  unusual  or          ___          outstanding  equities  on  comparable showing  in  adjustment-of-          status case).                    Petitioner also  made a  modest showing of  hardship to          family  members  should  he be  deported,  but  the  hardships he          envisions are not severe.  Petitioner's  relatives in this county          are in good health and  not dependent upon him for support.   His          plans  to  start  a  business with  his  brother  are  embryonic.          Finally, we attach little weight to the hardships that petitioner          personally may experience upon  his repatriation to China because          they are  of the sort  that would be  common to almost  any alien          returning  to a less prosperous  land after living  in the United          States.  See Ramirez-Durazo v.  INS, 794 F.2d 491, 498 (9th  Cir.                   ___ ______________     ___          1986).                    The  short of it is that, as the Board determined after          mulling  all   the   relevant  factors,   petitioner's   equities          (including his litany of potential hardships) do not outweigh the          serious adverse factors that  are present in his case.4   Because          the   record  reflects   a  plausible   basis  for   the  Board's          determination, we  are constrained to  find that the  Board acted          well  within its broad discretionary  powers in refusing to grant          the waiver.  See Gouveia,  980 F.2d at 818; Hazzard, 951  F.2d at                       ___ _______                    _______                                        ____________________               4The armed robbery itself stands as the most serious adverse          factor.  In addition, the Board supportably found that petitioner          showed no  remorse for his actions  and that he had  made no real          progress toward rehabilitation.                                          10          438.   As we recently wrote  in an analogous case,  "[t]his was a          judgment call,  pure and simple," and,  consequently, a reviewing          court  must defer to  the Board's notion  of where  to strike the          proper balance.   Gouveia, 980  F.2d at 819;  see also Henry,  74                            _______                     ___ ____ _____          F.3d  at 7 (counselling  that, in  such purlieus,  "[a] reviewing          court may not reweigh the equities afresh").                                         III                                         III                    We need go  no further.5   Waiver of  deportation is  a          discretionary remedy.  In the absence of  either a mistake of law          or a palpable abuse  of discretion    neither of which sully  the          pages of this record   the Board's judgment must prevail.                    The petition for review is denied and dismissed.                    The petition for review is denied and dismissed.                    _______________________________________________                                        ____________________               5Petitioner's argument that the Board applied  a per se rule             in  effect holding  that  the crime  was  so  heinous that  no          combination of  positive factors  could have outweighed  it    is          belied by the record and does not require further comment.                                          11
