
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).                                         -2-                                          2             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.                                         -3-                                          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                            ______________________________                                         -4-                                          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).             ___                                         -5-                                          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                                         -6-                                          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).                                         -7-                                          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)).                     ____________________________                                         -8-                                          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.                ___                                         -9-                                          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                                         -10-                                          10             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.                       _______                                         -12-                                          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.                                                             ________                                         -13-                                          13
