
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                 ___________________          No. 91-2236                                       FRANCISCO MARIA DE FREITAS NOIA,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                  __________________                          PETITION FOR REVIEW OF AN ORDER OF                           THE BOARD OF IMMIGRATION APPEALS                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ___________________               Robert D. Watt, Jr., on brief for petitioner.               __________________               Stuart  M. Gerson,  Assistant  Attorney  General,  David  J.               _________________                                  _________          Kline,  Assistant  Director,  and  William  J. Howard,  Attorney,          _____                              __________________          Office of Immigration Litigation, on brief for respondent.                                  __________________                                   August 25, 1992                                 __________________                  Per  Curiam.   Petitioner,  Francisco  Maria De  Freitas                 ___________            Noia,  seeks  review  of  a  final  order  of  the  Board  of            Immigration Appeals ("BIA") reversing  an immigration judge's            grant  of petitioner's  application for  discretionary relief            from  deportation under     212(c)  of  the  Immigration  and            Nationality Act  ("Act"), 8  U.S.C.   1182(c).   We  deny the            petition.                 Petitioner  lawfully  entered  the  United  States  from            Portugal  on July  17, 1976 at  the age  of 17.   Twenty-nine            months later he was arrested and indicted in Rhode Island for            assaulting a woman with a  hatchet with intent to murder her,            robbing her, and  stealing her car.  He  was convicted of all            three charges on  a plea of nolo contendere  and sentenced to                                        ____ __________            twenty-one  years incarceration  followed  by another  twenty            years of probation.   He served  approximately nine years  in            the Adult Correctional Institute at Cranston.  In July, 1987,            he  was  released on  parole  and  into  the custody  of  the            Immigration  and  Naturalization Service  ("INS"),  which had            previously  served him  with an  Order to  Show Cause  why he            should not be deported.                 At  his  deportation  hearing,  petitioner conceded  the            facts establishing that  he was deportable under    241(a)(4)            of the Act, 8 U.S.C.   1251(a)(4), as an alien convicted of a            crime involving  moral turpitude.   However,  he requested  a                                         -2-            waiver  of  his  deportation  under     212(c),  8  U.S.C.               1182(c).1    The   immigration  judge   ("IJ")  granted   his            application.     On  appeal  the  BIA  reversed,  finding  no            demonstration of the "unusual or outstanding equities" needed            to establish eligibility  for a discretionary waiver  under              212(c).                  Petitioner asks this court to  conduct a de novo  review                                                          _______            of the  evidence, replacing our  view of the facts  (which he            argues should be the  same as the IJ's view) for  that of the            BIA.  Even if we were  persuaded by petitioner's view of  the            facts  however, the  discretion  to  waive  exclusion  of  an            otherwise deportable alien  under the Act has  been delegated            to the BIA, not to this court.  Hazzard v. INS, 951 F.2d 435,                                            _______    ___            438  (1st Cir. 1991).   We  review the  BIA's action  only to            determine if  it was  "arbitrary, capricious  or an abuse  of            discretion."   McLean  v. INS,  901 F.2d  204, 205  (1st Cir.                           ______     ___            1990).                  The  BIA exercises  its  discretion by  "balanc[ing] the            adverse factors  evidencing an  alien's  undesirability as  a            permanent resident  with the social and humane considerations                                            ____________________            1.  Although    212(c) of the Act expressly applies to aliens            who are  returning "to  a lawful  unrelinquished domicile  of            seven consecutive years,"  it has been interpreted  to permit            discretionary  waiver of deportability of aliens who have not            left  the  country although  they  have  met  the seven  year            requirement.  See Joseph v. INS, 909  F.2d 605, 606 n. 1 (1st                          ___ ______    ___            Cir. 1990); Lozado  v. INS, 857 F.2d  10, 11, n. 1  (1st Cir.                        ______     ___            1988).                                          -3-            presented in  his behalf."  Matter of Marin,  16 I. & N. Dec.                                        _______________            581, 584 (B.I.A. 1978); Joseph v. INS, 909 F.2d 605 (1st Cir.                                    ______    ___            1990) (BIA's  interpretation  of its  statutory authority  is            entitled  to  court's  respect).   Its  factual  findings are            conclusive  if  supported  by  "reasonable,  substantial  and            probative evidence on  the record considered  as a whole."  8            U.S.C.    1105a(4).2   On  review, we  will uphold  the BIA's            action  "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)).              ________    ___                                            ____________________            2.  Respondent argues that  this court should not  review the            record  to determine if it contains substantial evidence, but            should instead confine its  review to the logic  and language            of the  BIA's opinion.   The BIA exercises its  discretion by            balancing   various   "factors,"   which  are   composed   of            conclusions  on certain  subjects  drawn from  the  evidence.            Respondent says that judicial review for substantial evidence            intrudes  on  this  discretionary exercise.    Since  we here            uphold the BIA's  decision we need  not reach this  argument.            We note,  however, that  the cases  respondent  cites do  not            support the limited review it  urges.  Cordoba-Chaves v. INS,                                                   ______________    ___            946 F.2d  1245, 1246 (7th  Cir. 1991); Blackwood v.  INS, 803                                                   _________     ___            F.2d  1165 (11th Cir. 1986); Vergara-Molina  v. INS, 956 F.2d                                         ______________     ___            682 (7th Cir.  1992).  These cases  hold, as has  this court,            that  the relative weight of  the various factors balanced is            committed to the BIA's discretion,  and will only be reviewed            for an  abuse.  Joseph, 909 F.2d at  607.  However, the cases                            ______            cited  also  recognize  that  on  an  appropriate  challenge,            judicial review  must necessarily extend  to the record  as a            whole  to ascertain  if the  BIA's decision  is supported  by            substantial  evidence,  Cordoba-Chaves,  946  F.2d  at  1249;                                    ______________            Blackwood,  803  F.2d  at 1168;  or  properly  considered all            _________            important factors, Vergara-Molina, 956 F.2d at 685.  A fourth                               ______________            case cited by respondent,  INS v. Jong Ha Wang,  450 U.S. 139                                       ___    ____________            (1981) (upholding BIA's interpretation of statutory term), is            inapposite.                                          -4-                 We read petitioner's arguments  as challenging the BIA's            exercise of discretion  on three grounds.   Petitioner claims            that  the  BIA  improperly  (1)  departed   from  established            policies when it  weighed the factors involved,  (2) exceeded            its authority by conducting a de novo review and substituting                                          __ ____            its own view of the  facts for that of the IJ,  and (3) based            its factual conclusions on less than "substantial" evidence.                 (1)  Departure from established policies                 ________________________________________                 Petitioner  argues that the BIA abused its discretion by            applying to his  case a standard of eligibility  never before            imposed.    The  requirement  of  "unusual  and   outstanding            equities"   to   offset  serious   negative   factors,  first            articulated  in Matter of Marin, 16 I.  & N. Dec. 581 (B.I.A.                            _______________            1978),  petitioner  argues,  was  applicable  only  in  cases            involving  drug-related crimes when  his hearing was  held in            July, 1987.  We disagree.                    Although Marin involved an alien who had been convicted                           _____            of drug-related crimes,  the BIA's opinion  applied to all               212(c) waiver  cases.   The  opinion  clearly warned  that  a            proportionately greater showing of  equities was required  to            balance out more egregious crimes.  Marin, 16 I. & N. Dec. at                                                _____            583.    The BIA  emphasized  that  it  has never  adopted  an            inflexible test for  determining when   212(c)  relief should            be granted.  Instead,                  The equities  that an applicant  for section 212(c)                 relief  must  bring   forward  to  establish   that                                         -5-                 favorable  discretionary action  is warranted  will                 depend in each case on the nature and circumstances                 of the ground of exclusion sought waived and on the                 presence of any additional adverse matters.  As the                 negative  factors  grow  more  serious  it  becomes                 incumbent   upon   the   applicant   to   introduce                 additional offsetting favorable  evidence, which in                 some  cases   may  have   to  involve   unusual  or                 outstanding equities. Such  a showing at  times may                 be required solely  by virtue of the  circumstances                 and nature of the exclusion ground sought waived.            Marin, 16 I. & N. Dec. at 585.            _____                  In a footnote the BIA added that the disfavor attending            serious  drug offenses would  generally require a  showing of            "unusual and  outstanding  equities" to  offset such  crimes.            Marin, 16 I. & N. Dec. at  586 n.4.  But neither the footnote            _____            nor the body of the opinion said that a weaker showing  would            be sufficient to  overcome otherwise heinous crimes  that did            not involve drugs.  See  Cordoba-Chaves v. INS, 946 F.2d 1244                                ___  ______________    ___            (7th  Cir. 1991)  (affirming, without  discussion of  instant            issue,   BIA's  denial   of   discretionary  waiver   because            "outstanding equities" shown in 1986 hearing  were outweighed            by  alien's conviction for  murder, aggravated battery  and a            lesser drug-related crime).                  In Matter  of Buscemi, 19 I. &  N. Dec. 628, 633 (B.I.A.                    __________________            1988), a  discretionary waiver  case involving  serious drug-            related  crimes,   the  BIA  commented,  "The   necessity  of            demonstrating  unusual   or  outstanding   equities  is   not            exclusively triggered by serious  crimes involving controlled            substances....[A]s we  indicated in Marin,  one must  examine                                                _____                                         -6-            the  gravity of  the offense."    We do  not read  Buscemi as                                                               _______            representing   a  shift  in   the  BIA's  standards,   but  a            predictable   clarification.       Petitioner   here   cannot            realistically   claim  to  have  been  misled  by  the  Marin                                                                    _____            decision,  which obviously  warned of  the  need for  greater            equities  where,  as  here, there  were  especially egregious            disqualifying factors.                   (2)  BIA's Standard of Review                   _____________________________                 Petitioner argues that the BIA exceeded its authority by            conducting a de novo review of  the evidence.  He claims  the                         __ ____            BIA erroneously refused  to accept the IJ's  factual findings            as conclusive.                   First,    we   do    not   agree    with   petitioner's            characterization of  the BIA's procedure.   The  BIA did  not            find new  facts nor  reweigh those which  the IJ  had already            found.  Instead,  the BIA held that the IJ  erred by applying            an inappropriate balancing standard.  The IJ had not assessed            the facts to  determine if petitioner had  shown "outstanding            and unusual equities",  as required by Marin.   Rather the IJ                                                   _____            had reasoned that  since petitioner had family  in the United            States, a clean record in  prison, and was truly contrite, he            should be given "the opportunity to remain."  The BIA did not            abuse its  discretion in holding  the IJ's decision to  be an            error under Marin.                        _____                                         -7-                 Second, the BIA searched the record for additional facts            that might demonstrate the "unusual and outstanding" equities            required by Marin, and found  none.  This second step in  the                        _____            BIA's review arguably might be characterized as de novo.  But                                                            __ ____            it was not  error.  The BIA has discretion to review the IJ's            decision de  novo,  and  the "full  power  to  determine  all                     __  ____            factual issues before it."   Hazzard v. INS, 951 F.2d  at 440                                         _______   ____            n.4 (quoting  1 C. Gordon  & S. Mailman, Immigration  Law and                                                     ____________________            Procedure, Sect. 3.05[5][b]  at p.3-57); Cordoba-Chaves,  946            _________                                ______________            F.2d  at 1249 (rejecting  petitioner's argument that  BIA was            required  to defer to IJ's factual and credibility findings).            Nor did the BIA abuse its discretion by not remanding to  the            IJ.   Petitioner  offers no  reason for  compelling a  remand            beyond his belief that the IJ is a better fact-finder.                 3.  Substantial Evidence                     ____________________                 Petitioner's  main argument appears to be that since the            IJ concluded  that petitioner was  entitled to a  waiver, the            BIA's contrary  decision must be wrong.  On review, we do not            choose  between  the  two  interpretations.    If  the  BIA's            decision is  supported by substantial evidence, meaning "such            relevant  evidence as  a  reasonable  mind  might  accept  to            support [such]  a conclusion," we  must defer to the  BIA and            affirm.   Blackwood, 803 F.2d  at 1168; Martinez v.  INS, No.                      _________                     ________     ___            92-1008, 1992 U.S. App. LEXIS 17123, at *3 (1st Cir. July 28,            1992).                                         -8-                  There was certainly substantial evidence to support the            BIA's decision.   Petitioner conceded commission of  a brutal            crime less than three years  after entering this country.  He            bore the burden of showing  that despite this fact there were            countervailing equities entitling him to discretionary relief            from deportation.  Hazzard, 951 F.2d at 438.                               _______                 The  BIA accepted the  IJ's assessment of  petitioner as            "candid and  worthy of belief," possessed of a genuine desire            "to walk the straight and  narrow" and having seen "the error            of  his ways."   But the BIA  found the record  devoid of any            other evidence probative  of the factors listed  in Marin and                                                                _____            other cases, which might demonstrate "unusual and outstanding            equities."                  The record showed that most of petitioner's stay  in the            United States  was spent behind  bars.  He had  no employment            history,  no community service,  and, the BIA  concluded, had            shown no evidence of rehabilitation.  Although respondent had            a  number of  family members  in  this country,  the BIA  saw            nothing in  the  record "to  suggest  that [he]  maintains  a            particularly close, supportive relationship with them."                 Petitioner  argues that the BIA erred in concluding that            there  was "no"  evidence on  each  of these  subjects.   For            example,  he points  to proof  that he  was assigned  work in            prison as  evidence of  an employment history.   He  says his            rehabilitation  was  demonstrated  by  such  evidence  as the                                         -9-            absence  of a prison disciplinary record and his parole after            less than nine  years' incarceration.  And he  argues that he            proved  close  family ties  by  his expressed  desire  not to            return to Portugal because his family was here.                 These abstruse  interpretations of  the evidence  aside,            our  reading of the record leads  us to conclude that the BIA            did not overlook any cogent  evidence that might have  proved            "outstanding equities" in petitioner's favor.  The BIA is not            required  to  address  specifically  each  item  of  evidence            presented,  so long as it has given reasoned consideration to            the record as  a whole.   Martinez, 1992  U.S. App. LEXIS  at                                      ________            17123.   Cf. Vergara-Molina  v. INS, 956  F.2d 682,  685 (7th                     ___ ______________     ___            Cir. 1992) (where evidence  showed BIA adequately  considered            rehabilitation factor, BIA need not discuss specifically each            fact which petitioner presented);  Villaneueva-Franco v. INS,                                               __________________    ___            802  F.2d  327,  329-30 (9th  Cir.  1986)  (BIA's recognition            generally of  favorable facts without  referring specifically            to each fact was not an abuse of discretion).                  In conclusion,  there is  no showing here  that the  BIA            abused  its  discretion  in denying  petitioner  a  waiver of            deportation under   212(c) of the Act.                 The decision of the BIA is affirmed.                                            ________                                         -10-
