
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1840                                    ZAKIA CARTER,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                              _________________________                          PETITION FOR REVIEW OF AN ORDER OF                           THE BOARD OF IMMIGRATION APPEALS                              _________________________                                        Before                          Selya and Boudin, Circuit Judges,                                            ______________                           and McAuliffe,* District Judge.                                           ______________                              _________________________               Joseph S. Callahan on brief for petitioner.               __________________               Frank W. Hunger, Assistant Attorney General, Civil Division,               _______________          and  Philemina  McNeill  Jones,  Assistant  Director,  Office  of               _________________________          Immigration Litigation,  United States Department  of Justice, on          brief for respondent.                              __________________________                                    July 30, 1996                              __________________________          _______________          *Of the District of New Hampshire, sitting by designation.                     SELYA,  Circuit  Judge.   Invoking  the  newly  enacted                    SELYA,  Circuit  Judge.                            ______________          "battered spouse"  provision of  the Immigration  and Nationality          Act (I&N  Act), 8 U.S.C.    1154(a)(1)(A)(iii) (1994), petitioner          Zakia  Carter seeks judicial review  of an order  of the Board of          Immigration  Appeals (the  Board)  denying her  motion to  reopen          deportation  proceedings.   Discerning  no  cognizable error,  we          decline to grant the petition.                                          I                                          I                    Carter, a native and  citizen of Morocco, was convicted          of assault and battery on March 8, 1981.  After  the victim died,          Carter pled guilty to a charge of  manslaughter.  The state court          sentenced her  to  serve 12-20  years  in prison.    She was  not          released from the penitentiary until March 20, 1993.                    The  Immigration  and   Naturalization  Service   (INS)          instituted deportation proceedings  against petitioner on October          28, 1988  (while she was  still incarcerated).   In its  order to          show  cause, the  INS charged  her inter  alia with  committing a          crime involving moral turpitude (for  which she was convicted and          sentenced to  a prison term  of more  than one year)  within five          years of her lawful entry into the United States, in violation of          section  241(a)(2)  of  the  I&N  Act,  8  U.S.C.    1251(a)(2).1                                        ____________________               1The statute reads in pertinent part:                    Any  alien who  (I) is  convicted of  a crime                    involving  moral  turpitude committed  within                    five years . . . after the date of entry, and                    (II) either is sentenced to confinement or is                    confined  therefor  . .  .  for  one year  or                    longer, is deportable.                                          2          Petitioner disputed  this charge, denying that the  crime she had          committed involved moral turpitude.                    On  March 19,  1990,  an immigration  judge (IJ)  found          petitioner  deportable.   While  her  appeal  to  the  Board  was          pending,  petitioner,  though  still  incarcerated,  married Dale          Carter  (a native and citizen  of the United  States).  Following          her release,  she gave birth to a child, Jamila Carter, on August          22,  1994.   Six weeks  thereafter, the  Board affirmed  the IJ's          decision  and entered a deportation order.  See Matter of Carter,                                                      ___ ________________          Interim Dec. No. 23-200-544 (BIA 1995).                    Petitioner subsequently  sought  a divorce.   She  then          filed  a motion to reopen the  deportation proceedings.  Although          the  Board  previously found  petitioner  deportable  due to  her          manslaughter conviction,  her motion asserts an  entitlement to a          waiver of  excludability premised  on her  status  as a  battered          spouse.2    The  Board  denied  her  motion  on  July  12,  1995.                                        ____________________          8  U.S.C.    1251(a)(2)(A)(i).    Since  the  charge  under  this          provision  is the  only charge that  INS pressed, it  is the only          charge that we discuss.               2The applicable statute reads in pertinent part:                    An alien who  is the spouse  of a citizen  of                    the United  States, who  is a person  of good                    moral  character,  who  is  eligible   to  be                    classified as  an immediate  relative .  . .,                    and who has resided in the United States with                    the alien's spouse may file a petition  . . .                    [for relief if]:                         (I)  the alien  is residing  in the                         United States, the marriage between                         the  alien  and   the  spouse   was                         entered  into in good  faith by the                         alien, and during the  marriage the                                          3          Petitioner now seeks judicial  review.  At the present  time, her          divorce  case  is  pending,  as  are  certain  domestic  violence          proceedings against her husband.                                          II                                          II                    We pause  to emphasize the circumscribed  nature of our          review.   The  Board originally  found Carter to  be inadmissible          (and, therefore, deportable) because she had committed a crime of          moral  turpitude (and served  more than twelve  months in prison)          within five  years of entering the United  States.  It denied her          motion to reopen  for a variety of reasons (most of which related          to  the  absence  of a  prima  facie  showing  of entitlement  to          relief).                    We  inquire only into the  Board's denial of the motion          to  reopen,  not  its  earlier  adjudication  of  the  merits  of          petitioner's excludability.   See  Gando-Coello v. INS,  888 F.2d                                        ___  ____________    ___          197,  198 (1st  Cir. 1989).   Though  the denial  of a  motion to          reopen  deportation proceedings  usually possesses  the requisite          finality and thus triggers the  judicial review provisions of the          I&N Act,  see, e.g., Baez v. INS, 41 F.3d 19, 21 (1st Cir. 1994);                    ___  ____  ____    ___          Goncalves v. INS, 6 F.3d 830, 831-32 (1st Cir. 1993); Athehortua-          _________    ___                                      ___________                                        ____________________                         alien . . . has been battered by or                         has  been  the  subject of  extreme                         cruelty perpetrated  by the alien's                         spouse; and                         (II)  the alien  is a  person whose                         deportation would result in extreme                         hardship to the alien or a child of                         the alien.          8 U.S.C.   1154(a)(1)(A)(iii) (1994).                                          4          Vanegas v. INS, 876 F.2d 238, 240 (1st Cir. 1989),  we probe that          _______    ___          denial solely to determine  whether the Board misread the  law or          otherwise  abused its  discretion  by acting  in an  arbitrary or          capricious  fashion.   See  INS v.  Doherty,  502 U.S.  314,  323                                 ___  ___     _______          (1992); INS v. Abudu, 485  U.S. 94, 105 (1988); Henry v.  INS, 74                  ___    _____                            _____     ___          F.3d 1, 4 (1st Cir. 1996).                    The Board's discretion is sprawling, but it does not go          untethered.    "[A]djudicatory  tribunals can  exceed  grants  of          discretion      even   ringing  grants   of  broad,   essentially          standardless discretion   in various ways."  Henry, 74 F.3d at 4.                                                       _____          In exercising  discretionary authority, the Board  is "obliged to          weigh all the pertinent factors (both favorable and unfavorable),          to exhibit due consideration for the universe of weighted factors          when tallying the equities, to exercise independent judgment, and          to  state plainly  its reasons  for granting or  denying relief."          Bing Feng Chen v. INS, ___ F.3d ___, ___ (1st Cir. 1996) [No. 95-          ______________    ___          2309,  slip  op.  at   6].    Once  the  Board   satisfies  these          obligations, however, it has discretion not only to deny a motion          to reopen  but also to deny a hearing thereon.  See Moore v. INS,                                                          ___ _____    ___          715 F.2d 13, 16 n.2 (1st Cir. 1983).                                         III                                         III                    It  is  settled that  the Board  can  deny a  motion to          reopen  if  (1) the  alien  fails  to  limn a  prima  facie  case          warranting relief, or (2)  the alien fails to introduce  material          evidence that  was  not previously  available,  discoverable,  or          considered at the  original hearing, or (3) the  Board reasonably                                          5          determines  that the equities do not justify the application of a          discretionary  balm.  See 8 C.F.R.    3.2 (1996); see also Abudu,                                ___                         ___ ____ _____          485  U.S. at 104-05 (applying this paradigm to the Board's denial          of a motion  to reopen);  Gando-Coello, 888 F.2d  at 198  (same).                                    ____________          Here, the Board had ample justification to  deny the petitioner's          motion.                    1.   INS Approval.  INS authorization of a petition for                    1.   INS Approval.                         ____________          a status adjustment  under 8 U.S.C.   1154 must  occur before the          Board can  grant such  relief.   See  8 U.S.C.    1154(b)  (1994)                                           ___          (placing  upon   the  Attorney   General  or  her   designee  the          responsibility to determine in the first instance "that the facts          stated in the  petition are true and that  the [petitioner] is an          immediate relative").  In this case, petitioner failed to present          her petition for adjusted status as a battered spouse to the INS,          and thus did not secure the requisite agency approval.                    Approval  by  the INS  is not  an empty  exercise, but,          rather, ensures that  the agency has a meaningful  opportunity to          verify  a  petitioner's claim  that  she  has been  subjected  to          physical abuse  and otherwise satisfies  the statutory  criteria.          Since the INS's imprimatur is  a condition precedent to obtaining          relief under  8 U.S.C.   1154(a)(1)(A)(iii), petitioner's failure          to comply with this requirement means that she is unable to state          a  prima facie case.  Consequently, the Board's refusal to reopen          the proceedings is unimpugnable.3                                        ____________________               3Highlighting this  same deficiency, the INS  challenges our          jurisdiction on the  basis that petitioner failed to  exhaust all          available administrative  remedies in that she  neglected to have                                          6                    2.  Good Moral Character; Extreme Hardship.  Petitioner                    2.  Good Moral Character; Extreme Hardship.                        ______________________________________          also  failed to establish a  prima facie case  under the battered          spouse provision because she did not submit adequate  evidence of          either "good moral  character" or "extreme hardship."  We explain          briefly.                    As  to  character, the  only  evidence that  petitioner          proffered consists of a copy of her prison records, detailing her          good  behavior and involvement in training programs while she was          incarcerated.   The  Board declined  to accept  these records  as          sufficient to show good moral character, and we are not persuaded          that the Board's position is arbitrary or capricious.                    We  note that  even  appropriate extrinsic  evidence of          good  moral  character   might  well  be   futile  here  due   to          petitioner's  conviction.   In the  deportation case  proper, the          Board found  petitioner's manslaughter offense  to be a  crime of          moral turpitude.  The  Board's judgments in such matters  are not          easily dismissed, see Franklin v. INS, 72 F.3d 571, 573 (8th Cir.                            ___ ________    ___          1996)  (explaining that  since  moral turpitude  is a  "nebulous"          concept, courts will only overturn the Board's determination that          a  crime  fits  within  that   rubric  if  the  determination  is          unreasonable);  and, in  all events,  we think  that manslaughter                                        ____________________          her petition verified by the INS..   "It is a familiar tenet that          when an appeal presents a jurisdictional quandary, yet the merits          of  the  underlying  issue, if  reached,  will  in  any event  be          resolved  in   favor  of   the  party  challenging   the  court's          jurisdiction,  then the  court  may  forsake  the  jurisdictional          riddle and simply dispose of  the appeal on the merits."   United                                                                     ______          States v. Stoller, 78  F.3d 710, 715 (1st Cir.  1996) (collecting          ______    _______          cases).   This  is such a  case.  Hence,  we take no  view of the          government's jurisdictional argument.                                          7          stemming  from assault  and battery is  properly classified  as a          crime of moral turpitude.  Compare, e.g., Asencio v. INS, 37 F.3d                                     _______  ____  _______    ___          614, 615 (11th  Cir. 1994)  (holding that attempted  murder is  a          crime of moral turpitude); Rodriguez-Padron v. INS, 13 F.3d 1455,                                     ________________    ___          1458  (11th Cir. 1994)  (holding that  second-degree murder  is a          crime of moral turpitude);  Gouveia v. INS, 980 F.2d  814, 815-16                                      _______    ___          (1st   Cir.  1992)  (holding  that  rape  is  a  crime  of  moral          turpitude); Thomas v. INS,  976 F.2d 786, 787-88 (1st  Cir. 1992)                      ______    ___          (holding assault and  battery with  a baseball bat  to be  crimes          involving moral turpitude).  Accordingly, petitioner's conviction          for  manslaughter not  only  would constitute  a  violation of  8          U.S.C.     1251(a)(2)(A)(i)  but  also would  preclude  her  from          establishing  the  "good moral  character"  necessary to  qualify          under the battered spouse provision.  See Flores  v. INS, 66 F.3d                                                ___ ______     ___          1069, 1073 (9th Cir.  1995) (holding that petitioner's conviction          for welfare fraud precluded her from establishing the "good moral          character"  required to  apply  for a  suspension of  deportation          under 8 U.S.C.   1254(a)(1)).                    Relatedly, petitioner neglected to proffer any evidence          as  to how deportation would  work an extreme  hardship to either          herself or her child.  This omission, in and of itself, prevented          the establishment of a prima facie case.  This is especially true          in  light of the Board's wide discretion in determining what does          and does not  rise to the level of "extreme  hardship."  See Luna                                                                   ___ ____          v. INS, 709 F.2d 126, 127 (1st Cir. 1983).             ___                                          IV                                          IV                                          8                    We need go no  further.  Given  the absence of a  prima          facie  case,  the  Board  acted well  within  its  discretion  in          summarily denying petitioner's motion to reopen.                    The petition for review is  denied and dismissed.   See                    The petition for review is  denied and dismissed.                    ________________________________________________    ___          1st Cir. R. 27.1.                                          9
