BURBANO

Interim Decision #3229

MATTER OF BURRANO

In Deportation Proceedings

A-38045964

Decided by Board September 13, 1994

(1) When the Board of Immigration Appeals reviews a discretionary determination of an

immigration judge, it relies upon its own independent judgment in deciding the

ultimate disposition of the case.

(2) The Board does not have a de facto policy of denying relief under section 212(c) of

the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (Supp. V 1993), to all aliens

convicted of a serious drug offense; however, a serious drug crime will be accorded

duo weight, as is consistent with the evolution of the immigration law in this area, and

may ultimately be the determinative factor in a given case.

CHARGE:

Order. Act of 1952—Sec. 241(a)(2)(A)(i) [8 U.S.C. § 1251(a)(2)(A)(i)j—Crime involving

moral turpitude

Sec. 241(a)(2)(A)(ii) [8 .U.S.C. § 1251(a)(2)(A)(ii)j—Crimes involv-

ing moral turpitude

Sec. 241(a)(2)(B)(i) [8 U.S.C. § 1251(a)(2)(B)a—Convicted of

controlled substance violation

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

George J. DeFabio, Esquire William Gossard

DeFabio & Fenn General Attorney

2121 Ponce de Leon Boulevard,

Suite 430

Coral Gables, Florida 33134

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members; Holmes,

Alternate Board Member

In a decision dated January 27, 1993, an immigration judge found

the respondent deportable as charged under sections 241(a)(2)(A)(i),

(A)(ii), and (B)(i) of the Immigration and Nationality Act, 8 U.S.C.

§§ 1251(a)(2)(A)(i), (A)(ii), and (B)(i) (Sum V 1993), as an alien who

has been convicted of a crime involving moral turpitude within 5 years

after entry, of two crimes involving moral turpitude not arising out of

a single scheme of criminal misconduct, and of a controlled substance

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violation. The immigration judge also denied the respondent's applica-

tion for a waiver of inadmissibility under section 212(c) of the Act, 8

U.S.C. § 1182(c) (Supp. V 1993), and ordered him deported from the

United States to his native country of Colombia. The respondent

appealed from that decision. The appeal will be dismissed.

PRELIMINARY DISCUSSION: STANDARD OF REVIEW

The only issue raised on appeal is whether relief from deportation is

warranted as a matter of discretion. However, before discussing this

matter, there is a preliminary issue to be addressed. The Board of

Immigration Appeals has recently been questioned concerning the

standard of review we utilize when considering a discretionary

decision of the immigration judge, such as the section 212(c)

application in the instant case. See Ortiz-Salas v. INS, 992 F.2d 105

(7th Cir. 1993); see also Yepes-Prado v. INS, 10 F.3d 1363 (9th Cir.

1993); Campos-Granillo v. INS, 12 F.3d 849 (9th Cir. 1993). Specifi-

cally, we have been questioned about the relationship between the

Board and the immigration judge in terms of discretionary authority.

We state at the outset that when the Board engages in a review of a

discretionary determination by an immigration judge, we rely upon

our own independent judgment in deciding the ultimate disposition of

the case. This is in accord with our mandate to "exercise such

discretion and authority conferred upon the Attorney General by law

as is appropriate and necessary for the disposition of the case." See 8

C.F.R. § 3.1(d)(1) (1994). The authority of the Board to issue a

discretionary decision independent from that of the immigration judge

has been recognized by the federal courts. See, e.g., Panrit v. INS, 19

F.3d 544 (10th Cir. 1994); Huaman Cornelio v. BIA, 979 F.2d 995,

-

998-99 (4th Cir. 1992); Ghassan v. INS, 972 F.2d 631, 635 (5th Cir.

1992), cert. dented, 113 S. Ct. 1412 (1993); Charlesworth v. INS, 966

F.2d 1323, 1325 (9th Cir. 1992); Hazzard v. INS, 951 F.2d 435, 440

(1st Cir. 1991); Cordoba-Chaves v. INS, 946 F.2d 1244, 1249 (7th Cir.

1991). Thus, we do not employ an abuse of discretion standard when

reviewing discretionary determinations of immigration judges.

The advantage of an independent standard of review is that it

promotes uniformity in the application of the various discretionary

provisions of the Act. See Matter of Cerna, 20 I&N Dec. 399, 405

(BIA 1991) (noting that a principal mission of the Board of Immigra-

tion Appeals is to ensure as uniform an interpretation and application

of the immigration laws as possible), aff'd, Cerna v. INS, 979 F.2d 212

(11th Cir. 1992). We note in this regard that the individualistic nature

of a discretionary determination permits the possibility that differing

decisions may be reached based on essentially identical facts, with

each decision arguably falling within a reasonable exercise of discre-

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tion. If our review were limited to questioning whether the immigra-

tion judge abused his or her discretion, we would be unable to remedy

such situations. However, by utilizing our own discretionary authority,

there exists a forum available to promote uniformity of result.

Nevertheless, our independent review authority does not preclude

the Board from adopting or affirming a decision of the immigration

,

judge, in whole or in part, when we are in agreement with the

reasoning and result of that decision. In this situation, the Board's

final decision may be rendered in a summary fashion; however, such

summary treatment of a case does not mean that we have conducted

an abbreviated review of the record or have failed to exercise our own

discretion. Rather, it is simply a statement that the Board's conclu-

sions upon review of the record coincide with those which the

immigration judge articulated in his or her decision.

Moreover, we recognize that the immigration judge who presides

over a case has certain observational advantages due to his or her

presence at the exclusion or deportation bearing. For example, the

Board ordinarily gives significant weight to the determinations of the

immigration judge regarding the credibility of witnesses at the hearing.

See, e.g., Matter of Pula, 19 I&N Dec. 467 (BIA 1987); Matter of

Magana, 17 I&N Dec. 111 (BIA 1979); Matter of T-, 7 I&N Dec. 417

(BIA 1957); cf. Ghassan v. INS, supra (recognizing that the Board

retains power to make independent credibility determinations when

appropriate). Similarly, we also may give significant consideration to

other findings of an immigration judge that are based upon his or her

observance of witnesses when the basis for those findings are

articulated in the immigration judge's decision.

Finally, we acknowledge that questions concerning our standard of

review were invited by occasional decisions of the Board which

concluded that the immigration judge "did not abuse his discretion."

We agree that the use of this and similar language can be misleading.

However, such language is attributable to inartful drafting rather than

to a limited review of the record on the part of the Board. We

additionally point out that sometimes the only question raised on

appeal to this Board is whether the immigration judge "abused his or

her discretion." In this situation, our conclusion on the issue might

simply represent a response to that specific argument on appeal.

Nonetheless, we recognize the desirability of avoiding such language,

and we reiterate that the Board relies upon its own independent

judgment in deciding the ultimate disposition of a case when reviewing

a discretionary determination of an immigration judge.

THE RESPONDENT'S APPEAL

We now turn to the respondent's appeal, in which he contests the

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denial of his application for a waiver of inadmissibility under section

212(c) of the Act.' The respondent argues that the immigration judge

erred in finding that his equities are, insufficient to outweigh the

adverse factors of record. We have reviewed the record in its, entirety,

and we conclude that the immigration judge accurately considered the

evidence presented and applied the relevant legal precedent. See

generally Matter of Morin, 16 1&N Dec. 581 (BIA 1978); see also

Matter of Roberts, 20 I&N Dec. 294 (BIA 1991); Matter ofEdwards, 20

,

I&N Dec. 191 (BIA 1990); Matter of uscemi, 19 I&N Dec. 628 (BIA

1988). We agree with the reasoning of the immigration judge's

decision and with his conclusion that the application should be denied

in the exercise of discretion. We therefore adopt the content of that

decision and add only the following observations.

Although not specifically stated by the immigration judge, the

respondent's lengthy criminal history requires him to show that he has

unusual or outstanding equities in this country. 2 See Matter of

Buscemi, supra. We concur with the immigration judge that the

respondent's equities in this country, while significant, are insufficient

to overcome his numerous criminal convictions. 3

As the respondent has been a lawful permanent resident of the

United. States since June 1983, his period of residency extends only 3

years beyond the statutory minimum for section 212(c) relief. He has

been incarcerated for a number of those years. Further, his first

criminal conviction occurred only 3 years after his entry. These factors

diminish the significance of the respondent's length of residence and

prevent that residence from being deemed an outstanding equity.

With respect to the respondent's family ties, his mother and four

Section 212(c) of the Act states:

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 the provisions of subsection (a)

(other than paragraphs (3) and (9)(C)). Nothing contained in this subsection shall limit

the authority of the Attorney General to exercise the discretion vested in him under

section 211(b). The first sentence of this subsection, shall not apply to an alien who has

been convicted of one or more aggravated felonies and has served for such felony or

felonies a term of imprisonment of at least 5 years.

2 The immigration judge stated instead that the respondent's equities fell "short of the

requisite minimum."

3 The respondent's criminal record includes three convictions for possession or

attempted possession of cocaine, as well as a conviction for attempted robbery and two

convictions for theft, all occurring between 1986 and 1990. The details of these

convictions are set forth in the immigration judge's decision. However, the immigration

judge neglected to mention the respondent's August 14, 1989, conviction in the Superior

Court for the District of Columbia for unlawful entry. Consideration of this conviction

only serves to further support the denial of the respondent's waiver application.

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Interim Decision #3229

siblings are lawful permanent residents of the United States. Several of

these relatives testified on his behalf at the hearing. However, neither

their testimony nor any other evidence of record indicates that the

adverse effect of deportation upon the respondent and his family will

exceed that typically suffered by a family in this situation. Therefore,

while we are sympathetic to the inherent difficulties involved in family

separation, we cannot find that the respondent's family ties in this

country qualify as unusual or outstanding equities. We further note

that the respondent is married and has a United States citizen step-

child. However, these factors are not dispositive even when considered

in conjunction with the other equities presented in this case. We point

out that the marriage occurred in 1992, during the pendency of these

deportation proceedings, and that the respondent's wife is not legally

in this country.

We further find, as did the immigration judge, that the respondent's

employment history is not particularly notable, and that his evidence

of rehabilitation does not present a significant equity in his favor. In

this regard, we note that the respondent submitted evidence indicating

that he performed well in the controlled environment of prison.

However, after his release from his first documented period of

incarceration, the respondent was convicted of theft. This post-release

conviction diminishes the significance of any record of good behavior

in prison, especially considering the respondent's long and varied

criminal history. Similarly, due to the brief passage of time involved,

we cannot accord considerable weight to the fact that the respondent

has had no further convictions since being released from prison in

February 1992.

Lastly, we note that the immigration judge did not find the

respondent's testimony at the hearing regarding his past crimes to have

been credible. The immigration judge's credibility determination,

which was not challenged on appeal, militates against any claims of

rehabilitation. Further, apart from any question with respect to

rehabilitation, lack of candor in itself serves as an adverse factor

weighing against a favorable exercise of discretion.

Having considered the record and the respondent's arguments on

appeal, we find no basis for disturbing the decision of the immigration

judge. Accordingly, the appeal will be dismissed. However, one final

matter requires our attention.

SECTION 212(c) RELIEF AND SERIOUS DRUG OFFENSES

As indicated above, it has been the established practice of the Board

to balance the positive and negative factors of an individual case when

making a discretionary determination under section 212(c) of the Act.

See, e.g., Matter of Marin, supra. However, our practice in this regard

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has recently been questioned by the United States Court of Appeals for

the Sixth Circuit. See Gonzalez v. INS, 996 F.2d 804 (6th Cir. 1993);

see also Yepes-Prado v. IRS, supra, at 1370-72. In Gonzalez v. INS,

supra, the respondent had been found deportable based upon her

convictions for drug offenses, one of which involved possession with

intent to distribute approximately 2 kilograms of cocaine. The Board

dismissed her appeal from an immigration judge's discretionary denial

of her application for a waiver of inadmissibility under section 212(c)

of the Act. Upon petition for review, the Sixth Circuit upheld the

Board's decision. However, the court found "some merit" in the

respondent's contention that the Board engages in a "de facto" policy

of denying section 212(c) relief to aliens convicted of a single and

serious drug offense. Id. at 810. Because we have never adopted such a

"de facto" policy, we believe this matter should be further addressed.

Initially, we note that during oral argument in Gonzalez v. INS,

supra, the court requested that Government counsel provide examples

of Board decisions granting section 212(c) relief to "serious" drug

offenders.4 In response, the Government submitted a decision granting

a waiver which had been issued by the Board several days earlier. In its

decision, the court found that this submission of a single decision

granting relief "leaves then impression" that the Board has a policy of

denying relief in all cases in which an alien has been convicted of a

serious drug offense. Id. at 810. We believe the court's reference to a

single favorable decision may be somewhat misleading. The case

presented to the court was intended to provide a contemporaneous

example of the type of decision requested by the court and to refute the

allegation that the Board would "never" grant discretionary relief to

an alien convicted of a serious drug crime. The decision was submitted

solely for illustrative purposes and was not represented to be the only

such decision, nor was it intended to be an indication that section

4 The definition of a "serious" drug offense can certainly be subject to differing

opinions. In providing information to be used to respond to the court's request, we

viewed a "serious- drug offense as a drug trafficking crime which constitutes an

"aggravated felony" under the Act. See section 101(a)(43) of the Act, 8 U.S.C.

§ 110 1(a)(43) (Supp. V 1993)_ We acknowledge that within this category of offense,

certain crimes will be more or less serious than others, and that the degree of seriousness

in a given case might be its determinative factor. However, we would be hesitant to

characterize any aggravated felony as "hardly serious," as the court appeared to do, due

to the congressionally mandated treatment of this category of offenses. Gonzalez v. INS,

supra, at 810. For example, section 243(h)(2) of the Act, 8 U.S.0 § 1253(h)(2) (Supp. V

1993), renders an alien convicted of any aggravated felony to be ineligible for

withholding of deportation, even if it is established that the alien faces imminent harm

or death due to persecution in Lis or her native country based on any of the enumerated

grounds. See also section 208(d) of the Act, 8 § I158(d) (Supp. V 1993).

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212(c) waivers involving serious drug crimes would only be issued

under identical circumstances.

This having been said, however, it should not be unexpected that

individuals who have been convicted of serious drug offenses may well

have a difficult time prevailing on appeal before this Board. First, as

noted by the court, the Board reviews "only a small percentage of the

total number of cases heard by immigration judges [who] are also

vested with the discretion to grant relief." Gonzalez v. INS, supra, at

810. Indeed, virtually all cases before the Board involving applications

for relief under section 212(c) have been adjudicated by an immigra-

tion judge after a full hearing on the merits, in proceedings in which

the applicant for relief carries the burden of proofs Many such

applications are granted by the immigration judges and one would

expect that the most deserving cases ordinarily will have been resolved

in favor of the applicant at this level.

Moreover, certain groups of aliens are less likely than others to be

successful in meeting their burden of demonstrating that a favorable

exercise of discretion is warranted, due to the particular nature of their

crime or crimes. Indeed, it has been long understood that as an alien's

crimes become more serious, there will be less likelihood that he or she

will be able to establish that a favorable exercise of discretion is

warranted. There may also be situations where the specific crime or

crimes involved in a given case will ultimately be the determinative

factor in a decision. For example, if an individual has been convicted

of a particularly heinous murder, that fact in itself may be dispositive

of the discretionary issue, regardless of the nature of the equities

presented. It would be disingenuous to suggest otherwise.

Likewise, an alien who has committed a serious drug offense will

face a difficult task in establishing that he or she merits discretionary

relief. The detrimental effect on society resulting from drug violations

has been consistently recognized by Congress in the clear distinctions

that have been drawn between drug offenses and other crimes and the

disparate treatment that has been accorded to different types of

criminals. See generally Matter of Gonzalez, 19 I&N Dec. 682 (MA

1988). The immigration law disfavors drug offenders by subjecting

them to exclusion and deportation from this country and by limiting

5 As it is often a source of confusion, we point out that both the immigration judges

and the Board of Immigration Appeals are part of the Executive Office for Immigration

Review and are independent of the Immigration and Naturalization Service, which is a

separate entity within the United States Department of Justice. See 8 C.F.R. §§ 3.0,

100.2 (1994). The Board has been independent of the service since June 1940 when

immigration responsibilities were transferred from the Secretary of Labor to the

Attorney General. Immigration judges have been fully independent of the Service for

over a decade.

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their eligibility for the various forms of relief from exclusion and

deportation. This is particularly true of aliens whose drug offenses

constitute aggravated felonies under the Act; indeed, aliens convicted

of aggravated felonies are subject to stricter procedures in general. See,

e.g., sections 242, 276(b)(2) of the Act, 8 U.S.C. §§ 1252, 1326(b)(2)

(1988); section 242A of the Act, 8 U.S.C. § 1252a (Supp. V 1993); see

also supra note 4.

It has been firmly established that aliens convicted of serious drug

offenses are required to show unusual or outstanding equities before

discretionary relief under section 212(c) will be further considered. See

Ayala-Chavez v. INS, 944 F.2d 638 (9th Cir. 1991); Blackwood v. INS,

803 F.2d 1165 (11th Cir. 1986) (per curiam); Matter of Buscemi, supra;

Matter of Duarte, 18 I&N Dec. 329 (BIA 1982); Matter of Main,

supra. Additionally, Congress recently amended section 212(c) of the

Act to preclude relief to those who have committed an aggravated

felony for which they have served a term of imprisonment of 5 or more

years. See section 212(c) of the Act; see also Matter of Ramirez-

Somera, 20 UN Dec. 564 (BIA 1992). Thus, it is increasingly evident

that Congress disfavors granting relief from deportation to aliens who

commit serious drug offenses. Consequently, an alien convicted of a

serious drug offense should be aware of the difficulties to be faced in

obtaining discretionary relief. We emphasize that this observation

should not be taken as an indication that the Board will never award

relief to an alien convicted of a serious drug offense. See Matter of

Cerna, supra, at 403-04. Rather, it is an acknowledgement that a

serious drug crime or crimes will be accorded due weight, as is

consistent with the evolution of the immigration law in this area.

In sum, this Board has never implemented, in law or in fact, a strict

policy of denying section 212(c) relief to every alien convicted of a

serious drug offense without regard to the totality of circumstances

presented in the case. Our established practice has been, and continues

to be, to premise discretionary determinations on the individual

factors presented in a given case.

ORDER: The appeal is dismissed.

879