
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                [Not for Publication]                                 ____________________        No. 96-1456                         CARLOS ALBERTO TARANAS DE MEDEIROS,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                 ____________________                           PETITION FOR REVIEW OF AN ORDER                         OF THE BOARD OF IMMIGRATION APPEALS                                 ____________________                                        Before                                Boudin, Stahl and Lynch                                    Circuit Judges                                    ______________                                 ____________________            Gary A. Pappas was on brief for petitioner.            ______________            Frank W.  Hunger, Assistant  Attorney General, with whom  David M.            ________________                                          ________        McConnell,  Assistant Director, Office of Immigration Litigation, were        _________        on brief for respondent.                                 ____________________                                   October 25, 1996                                 ____________________                      PER CURIAM.  Carlos  Alberto Taranas de Medeiros, a                      PER CURIAM.            citizen  of Portugal and  a lawful permanent  resident of the            United States since 1970, challenges the Board of Immigration            Appeals' denial  of his  request for relief  from deportation            under Immigration  and Nationality Act    212(c), 8  U.S.C.              1182(c).  He does not appeal the  Board's decision that he is            deportable under INA   241(a)(4),1 8 U.S.C.   1251(a)(4).  We            affirm.2                                            ____________________            1.  The  statute codified at   241(a)(4) at the time of these            proceedings  is presently codified  at    241(a)(2)(A)(ii), 8            U.S.C.   1251(a)(2)(A)(ii).            2.  The  recently enacted  Antiterrorism and  Effective Death            Penalty Act  of 1996  (AEDPA), P.L.  104-132, 110 Stat.  1214            (Apr.  24, 1996) does not affect this appeal.  Section 440(a)            of AEDPA on its  face deprives the federal appeals  courts of            jurisdiction  to  review deportation  orders  entered against            aliens who  are deportable for, inter  alia, having committed                                            _____  ____            two  crimes  involving  moral  turpitude,  but  this  bar  to            judicial  review  does  not  apply unless  both  crimes  were            committed within five years after the alien's entry  into the            United States.                      Section 440(a)  of AEDPA states:   "Any final order            of deportation against an alien by reason of having committed            a criminal offense . . . covered  by section 241(a)(2)(A)(ii)            for  which both  predicate  offenses are  covered by  section            241(a)(2)(A)(i),  shall  not  be  subject to  review  by  any            court."  In essence, then, the AEDPA jurisdictional provision            applies to cases  in which  aliens found  deportable under               241(a)(2)(A)(ii)  (two  crimes  of moral  turpitude  any time            after  entry  not arising  out  of  same  scheme of  criminal            misconduct) also meet the standards of   241(a)(2)(A)(i) (one            crime  of moral  turpitude within  5 years  after entry,  for            which  a sentence of  one year or  more may be  imposed).  In            Medeiros's  case,  both  of  the two  crimes  supporting  the            finding of his deportability were committed in 1984, 14 years            after his  entry into the  country.  Thus,  although Medeiros            was found to be deportable based upon his convictions for two            crimes involving  moral turpitude,  neither of  the predicate            offenses  are covered  by    241(a)(2)(A)(i),  and thus  this            court has jurisdiction to review the case.                                         -2-                                          2                      Our review in   212(c) cases is solely for abuse of            discretion.   Chen  v. INS,  87 F.3d  5,  8 (1st  Cir. 1996);                          ____     ___            Gouveia v. INS,  980 F.2d 814, 817 (1st Cir.  1992).  We have            _______    ___            said that there are three ways in which the Board  can commit            an  abuse  of  discretion:   "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."  Henry v.                                                                 _____            INS, 74 F.3d 1, 4  (1st Cir. 1996).  Medeiros makes  no claim            ___            that the  Board ignored  a relevant  factor or  considered an            irrelevant  one.   His  sole  contention  is that  the  Board            improperly weighed the factors.                      Where "the record  reflects a  plausible basis  for            the  Board's determination," however,  "we are constrained to            find that the Board acted well within its broad discretionary            powers in refusing to grant the waiver."  Chen, 87 F.3d at 9.                                                      ____            The record before  the Board,  with its  ample references  to                                            ____________________                      It is  similarly clear  that AEDPA does  not render            Medeiros  ineligible to seek   212(c) relief.  AEDPA   440(d)            amended  INA    212(c)  in much  the same  way that    440(a)            amended the INA's appellate  review section.  Section 212(c),            as amended by  AEDPA, bars from  seeking relief aliens  found            deportable  "by  reason  of  having  committed  any  criminal            offense covered  in section  241(a)(2)(A)(ii) for which  both            predicate offenses are  covered by section  241(a)(2)(A)(i)."            As discussed  above, Medeiros'  offenses, committed  14 years            after  his entry  into  the country,  are  not covered  by               241(a)(2)(A)(i).                                         -3-                                          3            Medeiros's considerable criminal activity,3  clearly reflects            a plausible basis for the denial of the waiver.  This case is            on  all fours with our  decision in Gouveia,  where we upheld                                                _______            the Board's  discretionary denial  of    212(c)  relief to  a            deportable alien.  In Gouveia,  as here, the Board adequately                                  _______            "took  into account  petitioner's  familial equities,  . .  .            lengthy period of residency,  and numerous positive character            references."  Gouveia, 980 F.2d at 818-19.  And in that case,                          _______            as  here,  "[t]he Board's  decision  makes  manifest that  it            appropriately considered  the entire panoply  of positive and            negative  factors  in declining  to  grant  a  waiver."   Id.                                                                      ___            Finally,  in Gouveia, as here,  the Board decided  in the end                         _______            "that  petitioner's equities  did  not  sufficiently tip  the            scales."  Id.                      ___                      Because we look only for an abuse of discretion, it            is  not our place to substitute our judgment for the judgment            of the  Board.  See Henry,  74 F.3d at 7  ("A reviewing court                            ___ _____                                            ____________________            3.  Medeiros's criminal  record includes, in addition  to the            two assault  and battery convictions (which  formed the basis            of the finding of deportability):  threatening, breaking, and            entering  in the  nighttime  with intent  to commit  larceny;            receiving stolen property; possession of a Class C controlled            substance  with intent  to dispense;  unlawful carrying  of a            dangerous  weapon;   loitering;  unlawful  possession   of  a            dangerous weapon; unlawful possession of a Class D controlled            substance; disorderly conduct; disturbing the peace; open and            gross lewdness; armed assault  in a dwelling; intimidation of            a witness;  malicious destruction of property  valued at less            than $100; non-support of  a minor child; and  numerous motor            vehicle licensing and registration infractions.  One of these            criminal convictions -- for  disorderly conduct -- came after            the INS instituted the deportation proceedings against him.                                         -4-                                          4            may not reweigh the equities afresh.");  Gouveia, 980 F.2d at                                                     _______            819  ("We refuse to second-guess  the Board on  the manner in            which  it  weights different  factors  when  arriving at  its            ultimate decision.").   The Board's decision  was "a judgment            call, pure and simple," id. at 819, and there is no reason to                                    ___            call it into question.4                      Petitioner's  argument boils down to the contention            that   212(c) relief  should have been granted as a matter of            law  after he met  the burden,  imposed on  him by  Matter of                                                                _________            Buscemi,  19 I. & N.  Dec. 628 (1988),5  of demonstrating his            _______            unusual  and  outstanding equities.    This  is an  untenable            notion.   The petitioner's demonstration of  equities in this            type of  case is the beginning  of the story, not  the end of            it.   See Gouveia, 980 F.2d  at 816 ("[E]ven the  presence of                  ___ _______            preponderant equities or equities  that in the abstract could            qualify  as 'unusual'  or 'outstanding'  does not  compel the            Board  to grant  [  212(c)]  relief."); Henry,  74 F.3d  at 7                                                    _____                                            ____________________            4.  Contrary to Medeiros's suggestion, there is nothing amiss            with  the   BIA's  "adopt[ion]  [of]  the   contents  of  the            Immigration  Judge's decision."   As  this court  pointed out            earlier this year,  "if the Board's view is that  the IJ 'got            it right,' the law does not demand  that the Board go through            the idle motions  of dressing  the IJ's findings  in its  own            prose."  Chen, 87 F.3d at 7-8.                     ____            5.  Under  Buscemi,  an  alien  facing  deportation  who  has                       _______            exhibited,  inter  alia,  a   pattern  of  serious   criminal                        _____  ____            misconduct must meet this higher burden  to justify the grant            of   212(c) relief.  Id.  at 633-34; see also Hazzard v. INS,                                 ___             ___ ____ _______    ___            951  F.2d  435,  438 (1st  Cir.  1991).    Medeiros does  not            challenge the applicability of Buscemi to his case.                                           _______                                         -5-                                          5            ("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."); cf. Hazzard,                                                             ___ _______            951 F.2d at  438 ("Neither the  BIA nor this  court has  ever            held  that  a  finding  of   'outstanding  equities'  compels            allowance   of  a   waiver   of  excludability."   (citations            omitted)).   The Board is  charged with balancing the alien's            adverse factors against his equities in reaching its decision            about  the availability of   212(c) relief.  Matter of Marin,                                                         _______________            16 I. & N. Dec.  581, 584 (BIA 1978).   This is exactly  what            the Board did in this case.  Affirmed.                                                                                                                                         -6-                                          6
