
USCA1 Opinion

	




        July 28, 1992            ____________________        No. 92-1008                                 JAVIER A. MARTINEZ,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                 ____________________                          PETITION FOR REVIEW OF AN ORDER OF                           THE BOARD OF IMMIGRATION APPEALS                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Roberto Gonzalez and Rappoport, Audette, Bazar  & Farley, on brief            ________________     ___________________________________        for petitioner.            Stuart  M.  Gerson, Assistant  Attorney  General, Robert  Kendall,            __________________                                ________________        Jr.,  Assistant Director, and Donald E.  Keener, Office of Immigration        ___                           _________________        Litigation, Civil  Division, United  States Department of  Justice, on        brief for respondent.                                 ____________________                                 ____________________                      SELYA, Circuit Judge.  This is a petition to review                             _____________            a  decision  of  the  Board of  Immigration  Appeals  (Board)            denying an  application for a  waiver of deportation  under              212(c)  of the  Immigration and  Naturalization Act  (Act), 8            U.S.C.   1182(c).            I.  BACKGROUND                __________                      Petitioner  is  a twenty-seven-year-old  native and            citizen of  the  Dominican Republic.   He  first entered  the            United  States on  a  two-year  tourist  visa  in  1974,  but            remained  here unlawfully after the visa expired.  In 1983 he            obtained  lawful  permanent   resident  status.     In  1990,            petitioner was  convicted for possession of cocaine, delivery            of  heroin,  and  driving   to  endanger.    Following  these            convictions, the government brought  deportation proceedings.            At  a preliminary  hearing, petitioner  conceded that  he had            been convicted  of  violating controlled  substance laws  and            was,  therefore,  deportable.    He  was  also  found  to  be            deportable as an aggravated felon.  After a hearing, however,            an  immigration judge  (IJ) granted  petitioner's application            for  a  discretionary  waiver of  deportation  under  section            212(c)  of  the  Act.   The  Immigration  and  Naturalization            Service appealed the IJ's decision.  The Board sustained  the            appeal  because  petitioner  "has  a  significant history  of            criminal activity  . . .  and . .  . has engaged  in criminal                                         -2-            activities for the entire time he has been a lawful permanent            resident."  Petitioner now seeks appellate review.            II.  DISCUSSION                 __________                      The  Board's  decision whether  to  grant a  waiver            under  section  212(c)  is  discretionary.   In  reviewing  a            discretionary  decision  of  the  Board,  we  determine  only            whether the  decision was arbitrary, capricious,  or an abuse            of  discretion.  Hazzard v. INS, 951  F.2d 435, 438 (1st Cir.                             _______    ___            1991).  Accordingly, we  will uphold a decision of  the Board            denying a section 212(c) waiver "unless it was made without a            rational explanation, inexplicably departed  from established            policies, or rested on an  impermissible basis."  Williams v.                                                              ________            INS, 773 F.2d 8,  9 (1st Cir. 1985).   To the extent that  we            ___            review  the   Board's  factfinding,   we  do  so   under  the            substantial evidence  standard.   Blackwood v. INS,  803 F.2d                                              _________    ___            1165, 1168 (11th Cir. 1986).  That is, if the  facts found by            the Board  are  supported by  "such  relevant evidence  as  a            reasonable mind might accept to support [such] a conclusion,"            they will be upheld upon review.  Consolo v. Federal Maritime                                              _______    ________________            Commission, 383 U.S. 607, 619-20 (1966).            __________                      In  this  proceeding,   petitioner  makes   several            arguments.  We deal with these in turn.                      1.  Deferral to the Immigration Judge's Findings                          ____________________________________________                      Petitioner argues  that the Board  was required  to            defer to the IJ's findings on credibility and rehabilitation.                                         -3-            This argument has no merit.  It is well  established that the            Board may review  the administrative record de novo  and make                                                        __ ____            its own findings of fact and law, including findings relating            to a  petitioner's credibility.   Cordoba-Chaves v.  INS, 946                                              ______________     ___            F.2d 1244,  1249 (7th Cir. 1991);  Castillo-Rodriguez v. INS,                                               __________________    ___            929 F.2d 181, 184-85  (5th Cir. 1991); Goon Wing Wah  v. INS,                                                   _____________     ___            386 F.2d 292, 293-94 (1st Cir. 1967).                      2.  Failure to Admit Additional Evidence or to                               ___________________________________________                          Remand to Immigration Judge                          ___________________________                      Upon  appeal  to  the  Board  petitioner  submitted            additional evidence to support  the IJ's decision, asking the            Board to remand  the case for further  hearing if it did  not            uphold the  decision.   The  Board declined  to consider  the            additional evidence, noting that  "only 5 months have elapsed            since   the  respondent's   release  from   prison.  .   .  .            Accordingly,  any  new  evidence of  rehabilitation,  even if            considered, would not be conclusive."                      We do  not agree  with petitioner that  the Board's            failure to consider  petitioner's additional  evidence or  to            remand  the  case  for  further  hearing  was  an   abuse  of            discretion.    To  the  extent  that  the  evidence  repeated            testimony given at the hearing, it was cumulative, hence, not            material.   See Cobourne v. INS, 779 F.2d 1564, 1566-67 (11th                        ___ ________    ___            Cir. 1986); Young  v. Department  of Justice,  759 F.2d  450,                        _____     ______________________            456-57 (5th Cir.), cert. denied, 474 U.S. 996 (1985).  And as                               ____________            the Board noted, the additional evidence covered a very brief                                         -4-            period of time.  Since petitioner had once before completed a            drug treatment program, but had subsequently continued to use            and sell  drugs, the  Board's determination that  evidence of            such  short  duration would  not  conclusively establish  his            rehabilitation was  reasonable.   See Blackwood, 803  F.2d at                                              ___ _________            1167.                      3.  Factual and Legal Errors                          ________________________                      Petitioner  claims  that  the  Board  made numerous            factual and  legal errors.   To the extent  that petitioner's            assignments of  error concern inferences the  Board drew from            conflicting evidence or  the way in which the  Board weighted            different factors, they are without  merit.  See Consolo, 383                                                         ___ _______            U.S.  at 620;  Joseph v.  INS, 909  F.2d  605, 607  (1st Cir.                           ______     ___            1990); Osuchukwu v. INS, 744 F.2d 1136, 1141 (5th Cir. 1984).                   _________    ___            We discuss only the remaining asseverations.                      First, petitioner claims that the Board  abused its            discretion by  failing to find  that petitioner's  employment            history  was a favorable factor.   In its  decision the Board            noted that "a history of employment" is a favorable factor to            be  considered in  determining whether  to grant  the section            212(c)  waiver,  but  it  failed   to  make  any  mention  of            petitioner's own employment  history.   Assuming the  Board's            failure to consider a relevant favorable factor may sometimes            constitute  an abuse of discretion, see, e.g., Jen Hung Ng v.                                                ___  ____  ___________            INS,  804  F.2d  534,  540  (9th  Cir.  1986),  the  evidence            ___                                         -5-            submitted  in  this case  shows that  petitioner's employment            history  would not be a significant favorable factor for him.            With the exception of his  employment in 1982-83, his precise            dates of employment before 1986 are either unverified by  his            employers  or  unknown.   From  1986  to  1990,  when he  was            imprisoned, petitioner  was engaged  in lawful work  for only            five  months.  During the  same time frame,  he spent several            years engaged in the illicit selling of drugs.                      We  also note that  petitioner's attorney failed to            present petitioner's employment history as a favorable factor            to  the IJ.   Moreover, counsel did  not solicit petitioner's            oral  testimony on this point at  the hearing.  In arguing to            the Board  that his prior employment was  a favorable factor,            petitioner  stated simply,  and incorrectly,  that he  "has a            record of steady employment going back to 1983."  He  made no            attempt  to elaborate  on his  allegation or  to  discuss the            specifics of the documentary evidence he submitted.   A party            who  suggests a point to the Board fleetingly and without any            developed argumentation  is not  entitled to complain  if the            Board disregards  the passing  reference.  See  Nunez-Pena v.                                                       ___  __________            INS, 956 F.2d 223,  225 n.4 (10th Cir. 1992);  Khalaf v. INS,            ___                                            ______    ___            909 F.2d 589, 592 (1st Cir. 1990).  Consequently, the Board's            failure  to consider petitioner's  employment history was not            error.                                         -6-                      Second, petitioner argues  that the Board erred  by            failing to consider certain  specific claims made or evidence            presented  in  the  proceedings  below.   We  have  carefully            examined the alleged omissions.  The Board discussed all  the            salient  aspects   of  petitioner's  claims  which  were  (a)            properly before  it and  (b) supported by  specific evidence.            No more was exigible.   Where, as  here, the Board has  given            reasoned  consideration  to the  petition, and  made adequate            findings, we  will not  require that it  address specifically            each  claim the petitioner made or each piece of evidence the            petitioner presented.   See  Vergara-Molina v. INS,  956 F.2d                                    ___  ______________    ___            682, 685 (7th Cir. 1992);  Villanueva-Franco v. INS, 802 F.2d                                       _________________    ___            327, 329-30 (9th Cir.  1986); Yahkpua v. INS, 770  F.2d 1317,                                          _______    ___            1321 (5th Cir. 1985); cf. Sanchez v. INS, 755 F.2d 1158, 1160                                  ___ _______    ___            (5th Cir. 1985) ("Thus, our review is limited to ascertaining            whether  any consideration has been  given by the  Board to a                     ___            limited  range of factors, nor  are we free  to undermine the            discretion of  the Board by  parsing these factors  into ever            smaller subfactors  and requiring  the Board to  consider the            pieces.") (emphasis in original; footnote omitted).                       Finally,  petitioner  argues   that,  even  if  the            alleged   errors  are  insignificant  standing  alone,  taken            together  they  represent   "significant  errors"   requiring            reversal   of  the   Board's   decision.     Here,   however,            petitioner's  individual assignments  of error are  devoid of                                         -7-            merit and the Board's  decision "sets out clearly  the ground            which forms the  basis for [its] denial of  the discretionary            [waiver]."  Crespo-Gomez v. Richard,  780 F.2d 932, 935 (11th                        ____________    _______            Cir. 1986).   That being so,  and because the  facts of  this            case  fall well within the factual profiles of other cases in            which aliens with controlled  substance convictions have been            denied section  212(c) waivers, see, e.g.,  Hazzard, 951 F.2d                                            ___  ____   _______            435;  Blackwood, 803  F.2d 1165;  Matter of  Edwards, Interim                  _________                   __________________            Dec. No. 3134 (BIA 1990); Matter  of Buscemi, 19 I. & N. Dec.                                      __________________            628 (BIA 1988), petitioner's argument is unpersuasive.                      4.      Failure   to   Articulate   Guidelines  for                              ___________________________________________            Determining             When an Applicant's Equities Meet the            ____________            _____________________________________            Board's                        Standard            ________                       ________                      Petitioner  claims  that   the  Board  also   acted            arbitrarily  when it found that  he had not  shown unusual or            outstanding  equities  because it  has  failed  to articulate            "guideline[s]"  for determining what  that standard means and            how to apply it.  The Board's  application of the "unusual or            outstanding  equities" standard  in section 212(c)  cases has            been accepted both  by this  court, see,  e.g., Hazzard,  951                                                ___   ____  _______            F.2d  at 438-39, and by other courts, see, e.g., Ayala-Chavez                                                  ___  ____  ____________            v.  INS, 944 F.2d 638,  641 (9th Cir.  1991); Nunez-Pena, 956                ___                                       __________            F.2d at  225.  Petitioner has presented  no compelling reason            for us to revisit this issue.            III.  CONCLUSION                  __________                                         -8-                      We need go no  further.  Inasmuch as  this petition            presents no  substantial  question, we  summarily affirm  the            decision of the Board.  See 1st Cir. Rule 27.1.                                    ___                      The petition for review is denied and dismissed.                      _______________________________________________                                         -9-
