reviewing a claim from a noncitizen who argued that “his false testimony was delivered not to ‘obtain’ immigration benefits, as the statute reads, but rather to ‘retain’ his permanent resident status”
How later courts described this case
- reviewing a claim from a noncitizen who argued that “his false testimony was delivered not to ‘obtain’ immigration benefits, as the statute reads, but rather to ‘retain’ his permanent resident status”
- following Campos-Guardado v. INS, 809 F.2d 285, 289 (5th Cir.), reh'g en banc denied mem., 814 F.2d 658 (5th Cir.), cert. denied, 484 U.S. 826, 108 S.Ct. 92, 98 L.Ed.2d 53 (1987)
- there is no need to remand a case where there is little likelihood that the agency would have reached a different conclusion but for the error
- no need to ___ remand a case where there is little likelihood that the agency would have reached a different conclusion but for the error
Written by the judges who cited it.
The opinion
REAVLEY, Circuit Judge,
dissenting:
As the majority correctly noted, the facts in this case are virtually identical to those in the Ninth Circuit case of Start v. Immigration and Naturalization Serv., 803 F.2d 539 (9th Cir.1986), withdrawn, 862 F.2d 787 (9th Cir.1988), and the majority follows the approach of Start exactly. I am inclined to agree with Judge Reinhardt’s dissent that the BIA’s application of 8 U.S.C. § 1251 (f), approved by the Ninth Circuit in Start, and now receiving the sanction of this court, “is contrary to the intent of Congress in amending the statute and thus is neither acceptable nor legitimate.” 803 F.2d at 545 (Reinhardt, J., dissenting). I need not reurge Judge Reinhardt’s argument, 1 however, because this court has committed a much more fundamental error in reviewing the Attorney General’s exercise of discretion.
Let me recapitulate the basis of the administrative decision in this case. After determining that the petitioner was statutorily eligible for the waiver, the BIA proceeded to balance “the alien’s undesirability as a permanent resident with the social and humane considerations present to determine whether according him such relief *691 is in the best interest of this country.” On one side of the scale are the positive factors: the petitioner’s family ties to his lawful permanent resident wife, United States citizen son, and lawful permanent resident mother (although she was residing in the Philippines at the time of the hearing); hardship to be suffered by his family if he were separated from his wife and son; the absence of any criminal record or other evidence of illegal conduct in the United States; a steady employment record; the fact that the petitioner had been a good provider for both his family in the United States and his family in the Philippines; references produced by the petitioner as to his good character; and the petitioner’s claim that he had no vices or bad habits. Against these are weighed the adverse factors, the three lies that Mr. Liwanag told the government from 1980 to 1984: (1) the lie that he told in 1980 to obtain entry, (2) the lie that he told in 1982 in petitioning for his wife and children to join him, and (3) the lie that he told in 1984 to hide his ineligibility and to prevent deportation. The BIA determined that the adverse factors outweighed the positive factors and denied the waiver.
While the BIA’s decision is not untenable on its face, it must be admitted that the decision is far from obvious. Although making a misrepresentation to the government is not a praiseworthy activity, under the circumstances of this case, neither does it excite moral outrage. Compare Hernandez-Robledo v. Immigration and Naturalization Serv., 777 F.2d 536, 541 (9th Cir.1985) (affirming the BIA’s exercise of discretion in denying the waiver to a Mexican citizen with an American son, because of his recent conviction of a “serious” crime); Dallo v. Immigration and Naturalization Serv., 765 F.2d 581, 588 (6th Cir.1985) (affirming the BIA’s exercise of discretion in denying the waiver to an Iraqi citizen with an American wife who had gained entry into the United States by means of a fraudulent marriage to another woman and who had conspired to arrange a number of other fraudulent marriages with U.S. citizens). Judge Reinhardt is certainly justified in questioning whether the denial of the waiver based solely on such a “grave misdeed” as misrepresenting one’s marital status, particularly when balanced against considerable positive factors, is permissible under the Act. See Start, 803 F.2d at 543 (Reinhardt, J., dissenting).
One of the adverse factors weighed in this case, however, is universally admitted to have been irrelevant and impermissible. The statute waives deportation for aliens who gained entry by misrepresentation if the alien has a parent, spouse or child who is a U.S. citizen or legal permanent resident. Because the statute specifically forgives the misrepresentation, the mere fact that such a misrepresentation was made cannot be weighed as a factor against granting the waiver. The majority holds as much, as has the Ninth Circuit, Start, 803 F.2d at 542 ; Hernandez-Robledo, 777 F.2d at 541 , and the government’s lawyer in this case concedes the point. Thus all agree that in weighing the 1980 lie, the BIA considered an impermissible factor in its balancing of Mr. Liwanag’s case. Nevertheless, the majority affirms the BIA’s “erroneous weighing” on the grounds that “the BIA's denial of the waiver of deportability was nonetheless proper because of additional misrepresentations wrought by Liwanag.” In holding that the BIA properly concluded that the 1982 lie and the 1984 lie outweighed the positive factors, the majority has affirmed a determination that the BIA did not make, and which is not discernible by a fair reading of its opinion.
Consideration of the 1980 lie is not incidental to the BIA decision, nor is it an alternative ground; rather, it is essential to the balancing. The Board’s opinion unequivocally states that the original misrepresentation is to be weighed against the petitioner: “Adverse factors would include the nature and underlying circumstances of the fraud or misrepresentation in-volved_” Petitioner made the same argument to the BIA that he successfully made to this court that “all applicants for § 241(f) relief have committed fraud, and where the only fraud in a case is that which made him eligible for the relief, it *692 should not bar the relief as a matter of discretion.” The BIA rejected that argument, however: “We do not agree with the respondent’s assessment of his case.... [W]e are unwilling to minimize the nature and extent of his fraud the way the respondent has.” Of the subsequent misrepresentations on which the majority opinion relies, the BIA holds that these acts “compounded” the original fraud. The majority is correct in noting that our review of the BIA decision is limited to a determination of whether there was an abuse of discretion. Jarecha v. Immigration and Naturalization Serv., 417 F.2d 220, 224-25 (5th Cir.1969). But in reviewing an administrative decision on an abuse of discretion standard, this court must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285 , 95 S.Ct. 438, 442 , 42 L.Ed.2d 447 (1974) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 , 91 S.Ct. 814, 824 , 28 L.Ed.2d 136 (1971)). An administrative decision is arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to consider.” Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 , 103 S.Ct. 2856, 2867 , 77 L.Ed.2d 443 (1983); see also Farmworker Justice Fund, Inc. v. Brock, 811 F.2d 613, 622 (D.C.Cir.), vacated as moot, 817 F.2d 890 (1987) (an agency decision may not rely on “statutorily impermissible or irrelevant factors”). When an agency’s decision is based on impermissible or irrelevant factors, “[t]he reviewing court should not attempt itself to makeup for such deficiencies; we may not supply a reasoned basis for the agency’s action that the agency itself has not given.” State Farm, 463 U.S. at 43 , 103 S.Ct. at 2867 . At least one court has held that when one of four factors considered by the BIA in exercising its discretion was irrelevant and improperly considered, the court cannot determine how the BIA would have exercised its discretion had it considered only relevant factors, and the proper disposition is to vacate the order and remand the case to the BIA. See Siang Ken Wang v. Immigration and Naturalization Serv., 413 F.2d 286, 287 (9th Cir.1969). Thus, even if the majority is correct in all its premises, it has committed error in not remanding to the BIA for reweighing of the relevant factors. Instead, the majority has “substitute[d] its judgment for that of the agency.” Overton Park, 401 U.S. at 416 , 91 S.Ct. at 824 .
Because the BIA weighed an impermissible factor against the substantial positive factors, the decision itself must be vacated. The case should be remanded for reconsideration.
. The court in Start, 803 F.2d at 542 , as did the majority in this case, affirmed the BIA decision that the petitioner was not entitled to the discretionary waiver because "he attempted through artifice to bring his wife and children into this country to join him and the rest of his immediate family.” Id. at 543 (Reinhardt, J., dissenting). The purpose of the § 1251(f) waiver is to unite families. “Congress felt that, in many circumstances, it was more important to unite families and preserve family ties than it was to enforce strictly the quota limitations or even many restrictive sections that are designed to keep undesirable or harmful aliens out of the country.” Immigration and Naturalization Serv. v. Errico, 385 U.S. 214, 220 , 87 S.Ct. 473, 478 , 17 L.Ed.2d 318 (1966). Congress determined that "[t]he facts that the alien could not honestly gain entry ... and had lied about it, were ... more than counterbalanced by familial relationships." Cacho v. Immigration and Naturalization Serv., 547 F.2d 1057, 1061 (9th Cir.1976). The Supreme Court has noted that the waiver was designed to accomplish a humanitarian result and that courts must "give meaning to the statute in light of its humanitarian purpose of preventing the breaking up of families.” Errico, 385 U.S. at 225 , 87 S.Ct. at 480 . Indeed, this court has held that § 1251(f) "is a benevolent statute. Mercy and compassion are inherent in its ameliorative functions; and we are convinced that Congress did not intend for the courts to be niggardly in their interpretation of its language." Gonzalez de Moreno v. Immigration and Naturalization Serv., 492 F.2d 532, 538 (5th Cir.1974). The waiver was originally mandatory but problems in administering it prompted Congress to amend the statute in 1981 to give the Attorney General discretion in applying the waiver. The legislative history of the amendments makes clear that it was not the intent of Congress to limit the availability of the waiver. See H.R.Rep. No. 264, 97th Cong., 1st Sess. at 24-25, reprinted in 1981 U.S.Code Cong. & Admin. News 2577, 2593-94. As Judge Reinhardt noted, “[t]he intent of Congress in amending the section was not to enable the BIA to deport an individual, like Start, who clearly qualified for relief." Start, 803 F.2d at 543 (Reinhardt, J., dissenting). In artificially dividing the petitioner's fraud into several discrete acts and in considering the petitioner’s desire to be united with his family as evidence of bad character, the BIA decision was "manifestly contrary to the intent of the Congress." Id. at 544 . Judge Reinhardt urges reversal in part on the grounds that the agency decision was based on inherent policy judgments that were contrary to the intent of the Congress. See id.