
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1679                                    WARREN HENRY,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                              __________________________                          PETITION FOR REVIEW OF AN ORDER OF                           THE BOARD OF IMMIGRATION APPEALS                              __________________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Selya, Circuit Judge.                                         _____________                              _________________________               Stanley H. Wallenstein for petitioner.               ______________________               Kristen  A.  Giuffreda,  Office of  Immigration  Litigation,               ______________________          United States Department  of Justice, with whom Frank  W. Hunger,                                                          ________________          Assistant  Attorney  General,  and   Ellen  Sue  Shapiro,  Senior                                               ___________________          Litigation Counsel, were on brief, for respondent.                              _________________________                                   January 16, 1996                              _________________________                    SELYA,  Circuit Judge.   Invoking  8 U.S.C.    1105a(a)                    SELYA,  Circuit Judge.                            _____________          (1994), petitioner Warren Henry seeks judicial review of an order          of  the Board  of  Immigration Appeals  (the  Board) denying  his          request for  adjustment of status and  directing his deportation.          We dismiss the petition.                                          I                                          I                    Petitioner,  a  24-year-old   Jamaican  national,   has          resided in  the United States since  late 1984.  His  parents and          four siblings live  here.1  Petitioner completed  high school and          one year of  college.  He  wed a United  States citizen, but  the          marriage did not last.  He  has a son by another woman.   His son          lives  in  the  United States,  but  not  with  petitioner    and          petitioner  does  not   support  the  boy  on  a  regular  basis.          Petitioner's  overall  work  record  is  spotty.    He  currently          operates a hair-styling salon in Springfield, Massachusetts.                    Petitioner  is no stranger to the legal system.  In May          of 1991,  New  York authorities  charged  him with  assault  with          intent to  cause serious harm,  criminal possession of  a weapon,          and menacing.  About three weeks thereafter, the police  arrested          him  for jumping  the  turnstiles on  the  New York  City  subway          system.  Initially,  he failed to respond to these charges.  When          he appeared two years later   doubtless prompted by his desire to          avoid looming deportation   the court reduced the charges arising          out of the first  incident to a single  count of simple  assault.                                        ____________________               1His  parents, a  brother,  and a  sister are  United States          citizens.  His other two siblings have permanent resident status.          Some relatives still live in Jamaica.                                          2          Petitioner pled guilty  both to  this reduced charge  and to  the          turnstile-jumping  charge.     The   court  imposed   a  one-year          conditional  discharge in  respect to  the former  and a  fine in          respect to the latter.                    Another  brush with the law proved to be a catalyst for          deportation proceedings.  On October 13, 1991, Springfield police          officers found  petitioner (who was carrying false identification          papers) in possession of  an unlicensed handgun.  He  pled guilty          to a  weapons-possession charge  on January  13, 1992,  using his          pseudonym ("Richard  Dave Gordon"),  and spent several  months in          jail.   On February 4,  1992, the Immigration  and Naturalization          Service (INS) instituted deportation proceedings.                    During  the pendency of the proceedings, petitioner had          another  close  encounter with  the law.    On December  2, 1992,          Springfield  authorities charged  him  with  assaulting a  police          officer.    The facts  surrounding  that incident  are  less than          pellucid.   The  police officer's  arrest  report states  that he          restrained petitioner after petitioner made a threatening gesture          in  response to  an inquiry,  and that  petitioner then  hit him.          Petitioner categorically  denies this  account, and says  that he          neither  threatened nor  struck  the officer.    On the  date  of          petitioner's deportation  hearing, the  assault charge  was still          pending,  and  the  record   reveals  no  definitive  disposition          (although,  at  oral  argument  before us,  petitioner's  counsel          represented that the charge is now by the boards).                                          II                                          II                                          3                    At this juncture, we temporarily shift our focus to the          statutory scheme.  Petitioner's conviction on the firearms charge          rendered him deportable under section 241 of the  Immigration and          Nationality  Act (INA),  8 U.S.C.    1251.2   Confronted  by this          statute, petitioner attempted to confess and avoid:   he conceded          deportability,  but sought  an adjustment  of status under  INA            245(a),  8 U.S.C.   1255(a).3  This course was theoretically open          because, under the immigration  laws, the grounds for deportation          are  not congruent  with those  for exclusion  of aliens.   Thus,          petitioner's firearms conviction rendered him deportable, but not          per se excludable.   Compare 8 U.S.C.   1251(a)(2)(C) with  id.                                 _______                          ____  ___          1182(a) (listing grounds for exclusion).                    Generally  speaking, resident aliens who are subject to                                        ____________________               2The statute provides in pertinent part:                         Any alien who at any time after entry is                    convicted  under  any   law  of   purchasing,                    selling,   offering  for   sale,  exchanging,                    using, owning,  possessing, or carrying . . .                    any weapon,  part,  or accessory  which is  a                    firearm  or  destructive  device  .  .  .  in                    violation of any law is deportable.          8 U.S.C.   1251(a)(2)(C) (1994).               3The statute provides in pertinent part:                         The status of an alien who was inspected                    and  admitted  or  paroled  into  the  United                    States  may  be  adjusted  by   the  Attorney                    General,  in  his discretion  and  under such                    regulations as he  may prescribe, to that  of                    an  alien  lawfully  admitted  for  permanent                    residence  [subject   to  certain  enumerated                    conditions not relevant here].          8 U.S.C.   1255(a) (1994).                                          4          exclusion upon leaving and attempting to reenter the country  may          apply for waivers of inadmissibility under INA   212(c), 8 U.S.C.             1182(c).4   Section  212(c) waivers  are equally  available to          aliens  in  deportation proceedings  as  long as  the  ground for          deportation is also a stated ground for exclusion.  See Campos v.                                                              ___ ______          INS, 961 F.2d 309, 313 (1st Cir. 1992).  But such waivers are not          ___          available to  aliens in  deportation proceedings when  the ground          for deportation is  not also a stated ground for  exclusion.  See                                                                        ___          id. at 316.          ___                                         III                                         III                    Petitioner's case falls between these stools.   Lacking          the  foundational  prerequisite  for  seeking  a  section  212(c)          waiver, he opted to  use an application for adjustment  of status          under  section 245(a)  as an  alternate vehicle.   See  Matter of                                                             ___  _________          Rainford,  Interim Dec.  No. 3191,  at 6 (BIA  1992) (authorizing          ________          status-adjustment applications  in such circumstances).   The INS          acknowledges  that he is eligible to be considered for adjustment          of status under section  245(a).  Whether he deserves  the relief          is a different  story.  On that score, an  immigration judge (IJ)                                        ____________________               4The statute provides in pertinent part:                         Aliens  lawfully admitted  for permanent                    residence  who  temporarily proceeded  abroad                    voluntarily  and   not  under  an   order  of                    deportation,  and  who  are  returning  to  a                    lawful   unrelinquished  domicile   of  seven                    consecutive  years, may  be  admitted in  the                    discretion  of  the Attorney  General without                    regard   to  [many   of   the   grounds   for                    exclusion].          8 U.S.C.   1182(c) (1994).                                          5          initially  considered and  denied  petitioner's  application  for          adjustment  of  status.    He explained  that  a  section  245(a)          adjustment  is a  discretionary  remedy; that  to receive  such a          benefice  an  otherwise deportable  alien  must  show unusual  or          outstanding  equities  sufficient  to  overbalance  the  negative          factor(s) on  which the finding of deportability rests; and that,          in   petitioner's   case,   the  equities   did   not  adequately          preponderate in his favor.                    Petitioner appealed.   See 8 C.F.R.    3.1(b)(2) (1995)                                           ___          (providing  for  administrative appeals  of  such  orders).   The          Board,  exercising de novo review,  see Gouveia v.  INS, 980 F.2d                                              ___ _______     ___          814,   817  (1st  Cir.  1992),  denied  relief.    In  its  view,          petitioner's  strong points, e.g., his  family ties to the United          States, his protracted residence here, and his belated efforts at          rehabilitation, did  not overcome  the discredit inherent  in his          criminal record.                                          IV                                          IV                    We do  not print  on  a pristine  page.   The  IJ  made          extensive  findings  in  this  matter,  and  the  Board  issued a          comprehensive decision  adopting many  of those findings.   After          careful  perscrutation of the record, we discern no fatal flaw in          the  Board's  rationale.     Thus,  we   uphold  the  denial   of          petitioner's request for adjustment of status for essentially the          reasons stated by the Board, adding relatively few comments.                                          A.                                          A.                                          __                    The  decision  to  grant  or deny  an  application  for                                          6          adjustment  of status  is  one  that  rests within  the  informed          discretion  of the Attorney General, see 8 U.S.C.   1255(a), and,                                               ___          by delegation, within the informed discretion of the Board.  As a          result, the  ambit of  judicial review is  tightly circumscribed.          Courts are entitled to  probe the Board's discretionary decisions          only  to the  extent  necessary to  ascertain  whether the  Board          misread  the  law  or  otherwise  misused its  discretion.    See                                                                        ___          Martinez v. INS, 970 F.2d 973, 974 (1st Cir. 1992).          ________    ___                    To be sure, adjudicatory tribunals can exceed grants of          discretion       even  ringing   grants  of   broad,  essentially          standardless discretion   in  various ways.  We have  pointed out          that courts can abuse discretion in any of three aspects, namely,          by neglecting to consider a significant factor that appropriately          bears  on the discretionary  decision, by  attaching weight  to a          factor  that does not appropriately  bear on the  decision, or by          assaying  all  the  proper  factors  and no  improper  ones,  but          nonetheless  making a  clear judgmental  error in  weighing them.          See, e.g.,  United States v. Roberts,  978 F.2d 17,  21 (1st Cir.          ___  ____   _____________    _______          1992); Independent Oil & Chem. Workers of Quincy, Inc. v. Procter                 _______________________________________________    _______          &  Gamble Mfg. Co.,  864 F.2d 927,  929 (1st Cir.  1988).  Like a          __________________          court, so, too, an  administrative adjudicative body charged with          making  a discretionary decision can stray beyond the pale in any          of these three ways.                                          B.                                          B.                                          __                    Petitioner asserts that the Board abused its discretion          in all the respects that we have mentioned.  We deal briefly with                                          7          each facet of this trifurcated assertion.                                          1.                                          1.                                          __                    First  and foremost,  petitioner  asseverates that  the          Board improperly failed  to consider all the factors favorable to          him.   In particular, citing Matter of Marin,  16 I & N Dec. 581,                                       _______________          584-85  (BIA 1978),  a section  212(c) waiver case,  he maintains          that the Board  unnecessarily limited the  data it considered  in          assessing the equities underpinning his request for adjustment of          status.                    In the  section 212(c) milieu, the  Board and reviewing          courts  habitually  refer  to  a   stock  list  of  factors  that          potentially  inform   the  equities  attendant   to  a   waiver.5          Petitioner asks us  to transplant this list wholesale and mandate          its use in connection  with status-adjustment applications  under          section 245(a).  This importuning reaches too far: fairly viewed,          it  solicits  the  overruling,  sub  silentio,  of  this  court's                                          ___  ________          decision in Campos.   There,  we held that  the Attorney  General                      ______          could rationally decide not to  make section 212(c) waiver relief                                        ____________________               5These factors include:                         (1)  family  ties   within  the   United                    States; (2) residence of long duration in the                    United  States; (3)  evidence of  hardship to                    petitioner   or    petitioner's   family   if                    deportation occurs; (4) service in the United                    States Armed Forces; (5) a  steady employment                    history;  (6)  the existence  of  property or                    business ties in  this country; (7) community                    service;  (8)  rehabilitation;  and  (9)  any                    other evidence fairly indicating petitioner's                    good character.          Gouveia, 980 F.2d at 816 (citing Marin, 16 I & N Dec. at 584-85).          _______                          _____                                          8          available to aliens convicted  of firearms offenses that rendered          them deportable  but not  automatically excludable.   See Campos,                                                                ___ ______          961 F.2d  at 316.  In so  holding, we made it  crystal clear that          the  section 212(c) waiver provision,  8 U.S.C.   1182(c), "could          not be utilized to  waive all grounds of deportability,  but only          ___                       ___          those grounds  of deportability having a  corresponding ground of          excludability . . . ."  Id. at 313 (emphasis in original).                                  ___                    Petitioner  today tries  to bring  in through  the back          door the same iteration that the Campos court barred at the front                                           ______          door.  His  core argument is that the Board abused its discretion          by  not  applying  the  section  212(c)  waiver  criteria  to  an          adjustment of status case.  Were we to accept this construct,  we          would  effectively  require  INS  to afford  deportable  but  not          necessarily  excludable aliens  (like petitioner)  relief exactly          equivalent  to that available under  8 U.S.C.    1182(c).  But we          expressly  declined to dictate such a result when we concluded in          Campos  that  the law  did  not  make  waiver of  inadmissibility          ______          available to all deportable aliens.                    We see  no reason to revisit  the matter.  When  all is          said  and done,  waiver  of inadmissibility  is an  extraordinary          discretionary remedy that Congress,  in enacting section  212(c),          made available primarily to assist excludable aliens who had been          long-term residents of  this country.   See Campos,  961 F.2d  at                                                  ___ ______          316.   Congress painstakingly  set the  limits  within which  the          waiver  proviso is to  operate.  The  courts have  no roving writ          that enables  them to  refashion the legislature's  handiwork and                                          9          stretch the statute to  cover all cases  in which a person  might          suffer deportation as a result of his own crimes.6                    In any event, the  argument that petitioner advances is          largely academic in the  circumstances at hand.  Even  in section          212(c)  waiver cases,  the Marin  factors are  only illustrative.                                     _____          They do not comprise an invariable checklist.  See Hazime v. INS,                                                         ___ ______    ___          17 F.3d 136, 140 (6th  Cir.) (explaining that the Board  need not          address all the  Marin criteria in reaching its  decision), cert.                           _____                                      _____          denied,  115 S.  Ct. 331  (1994).   So  long as  the Board  gives          ______          adequate  consideration  to the  equities supporting  a favorable          exercise  of discretion,  it  discharges its  duty under  section          212(c).  See id.; see also Marin, 16 I & N Dec. at 585.                   ___ ___  ___ ____ _____                    In  this instance,  the administrative record  makes it          plain that  the  Board paid  satisfactory  heed to  the  relevant          factors.   It explicitly noted petitioner's  length of residence,          his family  ties, his tentative steps  toward rehabilitation, and          the  conceivable  hardships (including  the  likely  loss of  his          proprietary interest in a start-up business).  Petitioner offered          no evidence  regarding military service  or community activities.          Thus,  the Board  in effect  considered all  the pertinent  Marin                                                                      _____          factors  despite  the  absence  of  any  obligation  to   do  so.                                        ____________________               6We note,  too, that  petitioner's construct not  only would          overrun the limits applicable to section 212(c) waivers, but also          would  serve  to  create   two  different  adjustment  of  status          standards:     one  for   criminals  ineligible  for   waiver  of          inadmissibility,  and another for  students, temporary employees,          and the myriad of non-resident immigrants eligible for adjustment          of status.   We think the Board's  decision to preserve the unity          of its status-adjustment standard is eminently reasonable, and we          discern no abuse of discretion here.                                          10          Petitioner has no valid ground for his Marin-based complaint.                                                 _____                                          2.                                          2.                                          __                    Next,  petitioner  posits  that  the Board  pondered  a          factor  that  should  have  been  excluded  from  the  decisional          calculus:   his  1992 arrest  for allegedly  assaulting a  police          officer.  He pegs this claim on Matter of  Arreguin, Interim Dec.                                          ___________________          No. 3247  (BIA 1995), a case  decided four days  before the Board          decided  Henry's appeal, and  asserts that Arreguin  stands for a                                                     ________          black-letter rule proscribing consideration of arrest reports.                    We  begin with basics.   The law recognizes  that in an          agency  as large  as  the INS  different  officials may  not  act          identically in every case.   This lack of complete  uniformity is          unavoidable   after  all, administrators are not automatons   and          does   not,  in   an   of  itself,   invalidate  agency   action.          Nonetheless, agencies do not have carte blanche.  While a certain          amount of asymmetry  is lawful,  see Davila-Bardales  v. INS,  27                                           ___ _______________     ___          F.3d 1,  5 (1st Cir. 1994);  Puerto Rican Cement Co.  v. EPA, 889                                       _______________________     ___          F.2d  292,  299  (1st Cir.  1989),  an  agency  may not  "adopt[]          significantly inconsistent  policies that result  in the creation          of   conflicting  lines  of  precedent  governing  the  identical          situation."  Davila-Bardales, 27 F.3d at 5 (citation and internal                       _______________          quotation marks omitted).                    Let  us be  perfectly clear:   the  precept counselling          avoidance of inconsistent administrative policies does not freeze          an agency's jurisprudence for  all time.  See, e.g.,  Congreso de                                                    ___  ____   ___________          Uniones Industriales de P.R.  v. NLRB, 966 F.2d 36,  39 (1st Cir.          ____________________________     ____                                          11          1992);  Shaw's Supermarkets, Inc. v.  NLRB, 884 F.2d  34, 37 (1st                  _________________________     ____          Cir.  1989).     The  precept  demands,  however,   that  if  the          "administrative agency decides  to depart significantly from  its          own precedent, it  must confront the  issue squarely and  explain          why the departure is reasonable."  Davila-Bardales, 27 F.3d at 4.                                             _______________          In other words, administrative agencies must apply the same basic          rules to all  similarly situated supplicants.   An agency  cannot          merely flit serendipitously from case to case, like a bee buzzing          from flower to flower, making up the rules as it goes along.                    It is against  this chiseled backdrop  that we turn  to          Arreguin.  There, the  Board reversed an IJ's refusal to  grant a          ________          section  212(c) waiver to an  alien convicted of  playing a minor          role in a marijuana  importing scheme.  In denying relief, the IJ          considered  a  twelve-year-old  arrest record  on  charges (later          dropped)  of smuggling  aliens  into  the  United  States.    See                                                                        ___          Arreguin,  supra,  at  8.     While  the  Board   sanctioned  the          ________   _____          admissibility of  the arrest  record into evidence,  it explained          that, under  the circumstances,  it would  give the  record scant          weight.  See id.  Petitioner maintains that Arreguin  establishes                   ___ ___                            ________          a black-letter  rule gainsaying reliance on  arrest records, and,          thus,  that consistency  of  precedent requires  reversal of  the          instant order.  We  demur:  the Board's decision in  Arreguin did                                                               ________          not require it ipso  facto to disregard altogether the  report of                         ____  _____          petitioner's 1992 arrest.                    The   principal   problem  presented   by  petitioner's          prohibitory proposition is Arreguin itself.  The case simply does                                     ________                                          12          not  announce  the rigid  rule  that petitioner  ascribes  to it.          There, the  Board approved the  IJ's admission of  a particularly          vulnerable arrest  record into evidence,  and agreed that  it had          some  probative value.  See  id.  The  difficulty was that, under                                  ___  ___                            _____          the  circumstances of the particular case, the IJ gave the record          _________________________________________          more weight  than it  deserved, and, concomitantly,  neglected to          give  full  effect  to  many positive  elements  buttressing  the          petitioner's case.  Properly read, Arreguin implicates matters of                                             ________          degree, explaining  the relative weight  that should be  given to          arrest  records.   Nothing  in  the opinion  suggests  that, when          facing a closer balance of equities, the Board might not properly          decide  that a  record  of arrest  tips  the scales  against  the          bestowal of discretionary relief.                    Nor  does  Arreguin  represent an  alteration  of prior                               ________          precedent.  The  traditional rules  of evidence do  not apply  in          immigration hearings, see,  e.g., Espinoza v.  INS, 45 F.3d  308,                                ___   ____  ________     ___          310  (9th Cir. 1995),  and arrest reports  historically have been          admissible  in such proceedings,  see Paredes-Urrestarazu v. INS,                                            ___ ___________________    ___          36 F.3d  801, 813  (9th Cir.  1994) (holding  that the  Board may          entertain  arrest  records  as  evidence).   Moreover,  while  an          arrest, without more, is  simply an unproven charge, the  fact of          the arrest, and its attendant circumstances, often have probative          value  in immigration proceedings.   See, e.g., id.  at 810 ("The                                               ___  ____  ___          fact  of arrest, insofar as it bears  upon whether an alien might          have engaged in underlying conduct and insofar as facts probative          of an  alien's `bad  character or undesirability  as a  permanent                                          13          resident'  arise  from  the   arrest  itself,  plainly  can  have          relevance" in  discretionary relief).  Arreguin  does not purport                                                 ________          to command  any deviation from  these venerable  practices or  to          prohibit the  type of  recourse that  the Board historically  has          made to arrest records.                    In fine, the lesson of Arreguin is that, when the Board                                           ________          appraises the  considerations on both sides  of the discretionary          balance to  determine  whether they  are  in equipoise,  it  will          accord virtually no weight to an arrest record remote in time and          unsupported by  corroborating evidence.  See  Arreguin, supra, at                                                   ___  ________  _____          8.  Here,  the Board adumbrated that  rather unremarkable lesson.          It  considered the 1992 arrest  report in a  limited way, without          giving  excessive  weight  to it.    It  was entitled  to  do so,          Arreguin notwithstanding.7          ________                                          3.                                          3.                                          __                    In  his most  broad-gauged foray,  petitioner maintains          that the Board  drew the  wrong conclusions from  the factors  it          considered.    In  this  context, petitioner  complains  that  he          demonstrated strong familial ties to the United States, long-term                                        ____________________               7Petitioner's reliance  on Arreguin  is misplaced for  other                                          ________          reasons as  well.  For  one thing,  Arreguin is a  section 212(c)                                              ________          waiver case, and  there is  no requirement that  the Board  treat          section 245(a)  status adjustment cases  like waiver cases.   For          another  thing,  Henry  himself  offered  the  arrest  record  as          evidence  before  the IJ,  apparently as  part  of an  attempt to          explain away the  incident in question.  It ill  behooves  him to          complain on  appeal that the Board  should not have paid  heed to          evidence  that he proffered.   See Johnson v.  INS, 971 F.2d 340,                                         ___ _______     ___          343 (9th  Cir. 1992) (recognizing  that the  doctrine of  invited          error precludes  a petitioner from  challenging the admissibility          of evidence she proffered at her deportation hearing).                                          14          residency here, and hardship in the event of deportation.  These,          he  continues,  are the  very factors  the  Board has  required a          petitioner  to  demonstrate  in  order  to  make  the showing  of          outstanding   equities  necessary  to  overcome  strong  negative          factors.  See Matter of Arai, 13 I & N Dec. 494, 496 (BIA 1970).                    ___ ______________                    Petitioner's argument misapprehends  both the nature of          status adjustment and the role of judicial review.  Adjustment of          status  is  not an  entitlement,  but,  rather, an  extraordinary          remedy.  The Board need not make the anodyne available to all who          theoretically  qualify.     Indeed,  the  Attorney  General   has          cautioned that  the Board's regimen  in Arai "does  not establish                                                  ____          rigid  rules which  deny  to immigration  judges the  flexibility          necessary  to carry  out their  duty to  analyze  sensitively the          competing factors in each particular case."  Matter of Blas, 15 I                                                       ______________          & N  Dec. 626, 641  (Atty. Gen. 1976),  aff'd, 556 F.2d  586 (9th                                                  _____          Cir. 1977).  Thus, status adjustment is quintessentially a matter          "of administrative discretion."  Arai, 13 I & N Dec. at 496.                                           ____                    Moreover,  when a  matter is  committed by  law to  the          Board's  sound  discretion,  a   reviewing  court  plays  a  very          restricted role in overseeing the administrative exercise of that          discretion.    So  long as  the  Board  follows  its own  settled          principles and provides a  reasoned explanation for its decision,          judicial review  is at an  end.   See Gouveia, 980  F.2d at  818;                                            ___ _______          Martinez, 970 F.2d at 974.          ________                    Of  course,  discretion  is  not to  be  confused  with          imperiousness.  When  the Board rejects a request  for adjustment                                          15          of status, it must articulate its reasons for taking that action,          and those reasons must be  plausible.  Nonetheless, the existence          of favorable  information under each  of the three  Arai headings                                                              ____          does  not require the Board  to grant adjustment  of status.  See                                                                        ___          Blas, 15 I & N Dec. at 641.   As we have written in an  analogous          ____          setting, "even the presence  of preponderant equities or equities          that in the abstract could qualify  as `unusual' or `outstanding'          does not compel the Board to grant relief."  Gouveia, 980 F.2d at                                                       _______          816.                    Here, the Board offered  an adequate explanation of why          it   believed  that  petitioner's   favorable  factors  were  not          sufficiently  compelling to  justify adjustment  of status.   The          Board's  decision  focused on  the  seriousness  of the  firearms          conviction.  It observed that  both petitioner and his  companion          were armed  at the time  of the arrest,  and that petitioner  had          maintained a  deception by  utilizing a pseudonym  throughout the          criminal  proceedings.   The  Board also  looked to  petitioner's          history of altercations with  the law, particularly his tardiness          in acknowledging his crimes in New York.  It took due note of the          favorable factors  advanced  by  petitioner  but  determined,  on          balance, that these points were not sufficiently robust  to yield          the kind  of unusual  and outstanding  equitable case that  would          warrant   an  adjustment  of   status.    In   short,  the  Board          persuasively  explained  the premises  on  which  it declined  to          exercise  its discretion.   That  ends the  matter.   A reviewing          court may not reweigh the equities afresh.  See Gouveia, 980 F.2d                                                      ___ _______                                          16          at 819.                                          V                                          V                    We  need  go no  further.   Adjustment  of status  is a          discretionary  remedy.   Although the  Board could  have afforded          petitioner this remedy,  it chose not to do so.  That is both the          Board's prerogative  and its  duty.  In  the absence of  either a          mistake  of  law or  a palpable  abuse  of discretion,  we cannot          substitute our judgment for that of the Board.                    The  petition for review is  denied and dismissed.  The                    The  petition for review is  denied and dismissed.  The                    _________________________________________________   ___          Board's decision and order are affirmed.          Board's decision and order are affirmed.          _______________________________________                                          17
