
USCA1 Opinion

	




          November 17, 1993      NOT FOR PUBLICATION                                 NOT FOR PUBLICATION                                 ___________________                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1329                             RADCLIFFE WESLEY NICHOLSON,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                 ____________________                        ON PETITION FOR REVIEW OF AN ORDER OF                           THE BOARD OF IMMIGRATION APPEALS                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                        Torruella and Boudin, Circuit Judges.                                              ______________                                 ____________________            Richard  L.  Iandoli  and  Iandoli  &   Associates  on  brief  for            ____________________       _______________________        petitioner.            Alison R. Drucker, Department of  Justice, Civil Division,  Office            _________________        of  Immigration  Litigation,  Frank  W.  Hunger,  Assistant   Attorney                                      _________________        General,  and  Richard M.  Evans,  Assistant  Director,  on brief  for                       _________________        respondent.                                 ____________________                                 ____________________                 Per  Curiam.  Petitioner Radcliffe Nicholson is a native                 ___________            and citizen of Jamaica who  entered the United States in 1983            at the age of 20  as a lawful permanent resident.   Beginning            in 1985, Nicholson  became involved in a  series of incidents            involving  illegal   drugs,  entailing   five  arrests,   two            possession convictions, and ultimately his conviction in 1989            of possession with intent to distribute cocaine.  This charge            made  him   deportable  under  both  the   aggravated  felony            provision and  the drug offense provision of  the law.  See 8                                                                    ___            U.S.C.    1251(a)(4)(B); (a)(11).                 On  January 4,  1990, the  INS issued  an order  to show            cause why he should not be deported.  The petitioner conceded            that he was deportable, but asked for a section 212(c) waiver            of inadmissibility.   8 U.S.C.     1182(c).   The immigration            judge  denied his application,  and the Board  of Immigration            Appeals  affirmed this order.   Petitioner  now asks  that we            overturn  the BIA's decision  or remand  for reconsideration.            We are indebted  to government  counsel for  a helpful  brief            elucidating INS precedent.                 Nicholson meets the statutory requirements for a section            212(c) waiver,  that is, he  is a permanent resident  and has            lived here continuously for at  least seven years.  Joseph v.                                                                ______            INS, 909 F.2d  605, 606 n.1 (1st Cir.  1990); Gando-Coello v.            ___                                           ____________            INS, 888 F.2d 197,  198 (1st Cir. 1989).  Under  In re Marin,            ___                                              ___________            16 I&N  Dec. 581  (BIA 1978), a  balancing test  is employed,                                         -2-                                         -2-            measuring the adverse  factors against the social  and humane            considerations  to decide,  finally,  if it  is  in the  best            interests of the country for the individual to remain.  In re                                                                    _____            Edwards, Int. Dec. 3134 (BIA 1990).  The number and nature of            _______            the humane considerations necessary to tip the scales  in the            individual's favor will vary depending on the severity of the            adverse factors involved.  A  serious narcotics offense is  a            particularly onerous factor to  overcome, requiring a showing            of unusual  or outstanding equities.   Marin, 16 I&N  Dec. at                                                   _____            586  n.4.  Even  a showing of  outstanding equities, however,            merely means the individual meets a threshold, not that he is            guaranteed the waiver.   In re Buscemi, 19  I&N Dec. 628, 634                                     _____________            (BIA 1988).   The  petitioner carries  the burden  of showing            that  he merits the  relief.  Hazzard  v. INS,  951 F.2d 435,                                          _______     ___            437-38 (1st Cir. 1991); Marin, 16 I&N Dec. at 583.                                    _____                 Nicholson's claimed equities  were his relationship with            his U.S. citizen son, born out of wedlock in 1989; his strong            emotional  ties  with  his  family,  including  his   mother,            stepfather,  brother, and  two sisters  who  all live  in the            Bronx; the length of his  residence in the United States; and            evidence of his rehabilitation, including the job he has held            since his release from prison.  Nicholson further pointed out            the  dismal economic conditions in Jamaica, claiming he would            be  unable  to find  work  or  to  provide any  money  toward                                         -3-                                         -3-            supporting his two  children (he also has a  daughter born in            1983 residing in Jamaica).                 After weighing these factors  against Nicholson's three-            year involvement with drugs and  the number and nature of his            prior convictions,  the immigration judge  denied Nicholson's            application for a  212(c) waiver.   In particular, the  judge            noted that while Nicholson had been told to provide affidavit            testimony from  the mother  of his  son confirming  financial            support,  her  affidavit  made no  mention  of  any financial            assistance  provided  by  Nicholson.    Only Nicholson's  own            testimony--and his mother's testimony that Nicholson had told            her he gave his children money--indicated that he contributed            anything to  their support.   Both of his children  live with            their  mothers, and  his  own claims  about  his daughter  in            Jamaica  were very vague, indicating  he sent money and gifts            only sporadically.                 The   judge  characterized  his   work  history  as  not            significant, noting that petitioner had not filed tax returns            for a  number of years  during which he supported  himself by            dealing drugs and by taking  occasional jobs "off the books."            His income, as reflected in  tax records, for the second half            of 1991 was less than $5,000.   The judge thus concluded that            no one relied on Nicholson for meaningful financial support.                 The  BIA  affirmed  this  decision,  finding   that  the            immigration  judge  had  taken  all  relevant  factors   into                                         -4-                                         -4-            account.  Nicholson  argues that the immigration  judge erred            in concluding  that he  provided little  support for  his son            based  on his  partial earnings for  1991.   Nicholson claims            that by working full-time, with  commissions and a raise, his            current  yearly salary  is approximately $16,000.   Nicholson            bears the burden  of establishing his equities, Marin, 16 I&N                                                            _____            Dec. at  583, and he  did not provide meaningful  evidence of            support.   Nicholson lived apart  from his children,  and the            BIA  is  not  required  to  assume  that  the  petitioner  is            financially supporting his children.  Indeed, Nicholson's own            testimony makes vague references to cash, gifts, and clothes-            -not a systematic, consistent source of support.                 Even  if  petitioner's  gifts  to his  son  were  to  be            classified as meaningful support, and if his work record were            taken to  indicate a  greater degree  of rehabilitation  such            that  his equities met the threshold of outstanding equities,            the BIA  still has the  discretion to refuse to  grant such a            waiver, see Joseph v. INS, 909 F.2d 605, 607 (1st Cir. 1990),                    ___ ______    ___            and  we can overturn  the decision only  if we find  it to be            "arbitrary, capricious, or an abuse of discretion."  Hazzard,                                                                 _______            951 F.2d  at 438  (quoting McLean v.  INS, 901 F.2d  204, 205                                       ______     ___            (1st Cir. 1990)).   Indeed, we  do not  require that the  BIA            "address  specifically each claim the petitioner made or each            piece of evidence  the petitioner presented"  so long as  the            BIA gives "reasoned consideration to the petition."  Martinez                                                                 ________                                         -5-                                         -5-            v. INS, 970 F.2d 973, 974 (1st Cir. 1992).   The BIA gave the               ___            petition  such   reasoned  consideration  in   affirming  the            immigration judge's  findings and  specifically commented  on            petitioner's history of drug convictions.                        Petitioner  also  asks  us  to  remand  because  of  new            evidence first made available to the BIA.  On  July 23, 1992,            petitioner filed his appeal to  the BIA.  On August  4, 1992,            another American citizen son was  born to Nicholson.  The BIA            gave petitioner  several extensions  to file  his brief,  the            final  deadline  being January  11,  1993.    On January  19,            petitioner married the  mother of his son, and  on January 27            he filed his brief  with the BIA  with two exhibits: the  New            York   birth  certificate  of   his  son  and   his  marriage            certificate.   The brief contained  a request  to remand  the            case in light of  this new evidence.  On February  26 the BIA            affirmed  the immigration judge's denial of the 212(c) waiver            without mentioning Nicholson's recent marriage and new son.                 The government urges  us to cast  a suspicious eye  over            evidence rapidly assembled  after an initial hearing  has not            gone  well.   In  any  event, 8  C.F.R.     3.2 presents  the            requirements for a motion to reopen immigration hearings, and            the  regulations require that the evidence be unavailable and            not  discoverable at the former hearing;  here, the child was            born five months before the brief was due for the BIA review,            but  three  months  after  the  original  hearing.   The  new                                         -6-                                         -6-            evidence offered  must also  be material, that  is likely  to            change  the result if the case were  reopened.  In re Coelho,                                                            ____________            Int. Dec. 3172 at 13 (BIA 1992).                   Admittedly, an additional  child and a wife  do evidence            stronger emotional ties and possible hardship to petitioner's            family.    But while  Nicholson  married the  mother  of this            child,  they apparently do  not live together  and once again            Nicholson presents  no evidence  that he  supports the  child            financially.   This  new factor  does  not materially  change            Nicholson's status.  The immigration judge thoroughly weighed            the hardship to Nicholson and to his family, noting, however,            that Nicholson has family, including a daughter, in Jamaica.                 The judge  did not  weigh lightly separating  petitioner            from  his family.   However,  he also  did not  weigh lightly            petitioner's history of  drug convictions and drug use.  When            a petitioner has been involved in drug  distribution, the BIA            has not hesitated to uphold a denial of a 212(c) waiver, even            when U.S. citizen  children have  been born  in the  interim.            See,  e.g., Hazzard, 951  F.2d at 436.   We see  no basis for            ___   ____  _______            believing that the new  circumstances presented by  Nicholson            would alter  the result reached by the  immigration judge and            we do not consider the BIA's refusal to remand to be an abuse            of discretion.                 The petition for review is denied.                                            ______                                         -7-                                         -7-
