Interim Decision #2666

Interim Decision #2666

MATTER OF MARIN

In Deportation Proceedings

A 13923847

-

Decided by Board August 4, 1978

(1) An application for discretionary relief under section 212(c) of the Act necessitates a

balancing of the adverse factors of record evidencing an alien's undesirability as a

permanent resident with the social and humane considerations presented in his behalf to

determine whether the granting of relief is in the best interest of this country.

(2)A statutorily eligible applicant who has the right to apply for relief under section 212(c)

must be given the reasonable opportunity to come forward with favorable considerations which may offset the adverse matters of record.

(3) The equities that an applicant for relief under section 212(c) must bring forward to

establish that favorable discretionary action is warranted will depend in each case on

the nature and circumstances of the ground of exclusion sought waived and on the

presence of any additional adverse factors (factors previously deemed favorable and

unfavorable set forth)

(4) An applicant for discretionary relief under section 212(c) who has been convicted of a

serious drug offense must demonstrate "uriusuar . or "outstanding" countervailing

equities before a favorable exercise of discretion will be considered.

(5) An applicant for relief under section 212(e) who has a criminal record will ordinarily be

required to make a showing of rehabilitation before relief will be granted as a matter of

discretion.

(6) There is no irrebuttable presumption that a confined or recently convicted alien can

never establish either that rehabilitation has occurred vr that relief under section 212(e)

should otherwise be granted.

(7) The recency of a conviction and the fact of confinement are matters relevant to the

consideration of whether an alien has demonstrated his rehabilitation and whether relief

should be granted as a matter of discretion.

(8)A District Director is not required to withhold the issuance of an Order to Show Cause

in the case of a confined or recently convicted alien who is statutorily eligible for relief

under section 212(c) in order to provide the alien a better opportunity to demonstrate

his rehabilitation.

(9) The decision to institute deportation proceedings is vested in the discretion of the

District Director and the Board of Immigration Appeals is not the proper forum in

which to seek a review of the rationale underlying a District Director's decision in this

regard.

CHARGE:

Order: Act of 195Z-3ection 241(e)(11) [8 U.S.C. 1261(o.)(11)] Conviction of nareoti'es

charge

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interim vecimon IF LUOU

ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

Willard H. Myers, III, Esquire

Prisoners' Legal Services of New York

515 Lake Street

Elmira, New York 14901

George W. Masterton

Appellate Trial Attorney

BY: Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members

In a decision dated August 23, 1977, the immigration judge found the

respondent deportable as charged, denied his application for a waiver of

inadmissibility under section 212(c) of the Immigration and Nationality

Act, 8 U.S.C. 1182(c), and ordered his deportation to Colombia The

respondent has appealed. The appeal will be dismissed.

The respondent, a 46-year-old native and citizen of Colombia, was

admitted to the United States for lawful permanent residence on February 3, 1965. In March 1976, he entered a guilty plea in a New York

State criminal court to the felony charge of criminal sale of cocaine. On

April 29, 1976, he was sentenced to the minimum mandatory sentence

provided under New York law for that offense, an indeterminate sentence of one year to life. Including credited pretrail confinement, the

respondent served some 20 months of this sentence (from November

1975 through May 1978) in New York State penal institutions.

On May 11, 1977, while still confined, an Order to Show Cause was

issued charging the respondent with being deportable under section

241(a)(11) of the Act, 8 U.S.C. 1251(a)(11), as an alien convicted of a

designated drug offense. At the hearing held on July 20, 1977, the

respondent conceded deportability. The immigration judge accordingly

found him deportable as charged and that finding is not in issue on

appeal.

At the deportation hearing, the respondent applied for relief under

section 212(c) of the Act. That section provides, in pertinent part, that

aliens lawfully admitted for permanent residence who temporarily proceed abroad voluntarily and not under an order of deportation, and who

are returning to a lawful unrelinquished domicile of seven consecutive

y ears, may be admitted in the discretion of the Attorney General without regard to certain specified grounds for exclusion enumerated in

section 212(a) of the Act. The grounds specified include an alien who has

been convicted of a drug offense, as set forth in section 212(a)(23) of the

Act, 8 U.S.C. 1182(a)(23). In light of our decision in Matter of Silva,

Ititerim Decision 2532 (BIA 1976), the immigration judge properly concluded that the respondent was statutorily eligible for relief from deporttion under section 212(c) even though he had not proceeded abroad

subsequent to his entry for lawful permanent residence. See Francis v.

INS, 532 F.2d 268 (2 Cir. 1976).

Section 212(e), however, does not provide an indiscriminate waiver

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interim uecision /FLOOD

for all who demonstrate statutory eligibility for such relief. Instead, the

Attorney General or his delegate is required to determine as a matter of

discretion whether an applicant warrants the relief sought. The alien

bears the burden of demonstrating that his application merits favorable

consideration.

In the case before us, the immigration judge concluded that the

respondent had failed to establish that "a waiver of deportability Masi

merited as a matter of discretion." ' In this regard, he noted the nature

of the respondent's criminal offense and subsequent confinement and

concluded that a waiver should not be granted absent a showing of

"unusual or outstanding equities." Other than his residence in the

United States for 12 years, however, the respondent was "unable to

advance any substantial equities." z He was single, childless, and had no

relatives residing in this country. His closest relatives (a brother and

sister) both lived in Colombia. 'The respondent's employment history

was sporadic and he presented no evidence that he would have particular difficulty returning to Colombia other than stating that "life [was]

too hard there."

Based on the "entire record," the immigration judge concluded that

the respondent's conviction as a drug offender had not been sufficiently

offset by his "twelve years of residence in the United States" and "his

adjustment to prison life" to warrant the granting of discretionary relief

under section 212(0_ The application for relief was accordingly denied.

On appeal, the respondent, through counsel, states that the "decision

of the immigration judge denying [his section 212(c)] application . . . in

the exercise of discretion was neither founded upon standards which

have been promulgated through regulation or adjudication, nor did the

standards applied rest upon a permissible basis." The respondent submits that a wealth of preeendenti al standards exist regarding the discretionary granting of section 212(e) relief, that the immigration judge

made a "radical departure from the precedent decisions of this Board

[by instead] employing the standards of Matter of Fernandez, supra,

and Matter of Arai, supra," that he did so without citation or comment

on the existing precedent decisions, that this departure "violated any

standard for fair play, as well as due process," and that the factors

actually relied upon by the immigration judge were impermissible.

The immigration judge cited Matter of Fernandez, 14 1. & N. Dec. 24 (BIA 1972)

(involving a section 212(h) waiver) as permitting him to refuse to entertain the section

212(c) application because the respondent was still in prison, but he in fact accepted the

application and allowed the respondent the full opportunity to present evidence in support

of a favorable exercise of discretion.

2 The immigration judge noted the factors deemed favorable in our decision in Matter of

Anti, 15 1. & N. Dec. 404 (BIA 1070) (involving adjustment of status under section 245 of

the Act) and examined the record for their presence.

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Interim Decision #2666

We find no merit to this basis of appeal. The Board has not adopted an

inflexible test for an immigration judge to use to determine as a contclus-

ory matter whether section 212(c) relief should be granted as a matter of

discretion. The undesirability and "difficulty, if not impossibility, of

defining any standard in discretionary matters of this character which

may be applied in a stereotyped manner" has long been recognized . See

Matter of L—, 3 I. & N. Dec. 767 (BIA 1949; A.G. 1949) (involving the

seventh proviso to section 3 of the Act of 1917). Instead, it has been held

that each case must be judged on its own merits. The immigration judge

must balance the adverse factors evidencing an alien's undesirability as

a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of section 212(c)

relief appears in the best interests of this country.

In order to provide the framework for an equitable application of

discretionary relief, the Board has enunciated factors relevant to the

issue of whether section 212(c) relief should be granted as a matter of

discretion. Among the factors deemed adverse to a respondent's application have been the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of

tins country's immigration laws, the existence of a criminal record and,

if so, its nature, recency, and seriousness, and the presence of other

evidence indicative of a respondent's bad character or undesirability as

a permanent resident of this country. See, for example, Matter of

C'arraseo, Interim Decision 2579 (BIA 1977), aff d on other grounds,

C arraseo-Favela v. INS, 563 F.2d 1220 (5 Cir. 1977); Matter of Edward-3, 10 I. & N. Dec. 506 (BIA 1963, 1964); Matter of M—, 3 I. & N.

Dec. 804 (BIA 1949) (involving the seventh proviso to section 3 of the

Irranigration Act of 1917); Matter of V—, 1 I. & N. Dec. 293 (BIA 1942)

(seventh proviso); Matter of G—, 1 I. & N. Dec. 8 (BIA 1940; A.G. L940)

(seventh proviso).

Although in an individual case, one or more of these adverse factors

may ultimately be determinative of whether section 212(c) relief is in

fact granted, their presence does not preclude a respondent from presenting evidence in support of a favorable exercise of discretion. See

r-issian v. INS, 548 F.2d 325, 330 (10 Cir. 1977). 3 Favorable considerations have been found to include such factors as family ties within

the United States, residence of long duration in this country (particu.Matter of Fernandez, supra, which involved an application for section 212(h) relief

filled by an incarcerated applicant in exclusion proceedings, should not be read as permittlaig an immigration judge to decline to entertain an application for relief under section

213(c) by a statutorily eligible respondent merely because he is held in confinement. A

re spondent with the right to apply for such relief must be given the reasonable opportuniity to meet his burden of establishing that relief should he granted as a matter of

dtseretion. See Matter of M—, 71. & N. Dec. 368 (BIA 1956).

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Interim Decision #2666 .

laxly when the inception of residence occurred while the respondent was

of young age), evidence of hardship to the respondent and family if

deportation occurs, service in this country's Armed Forces, a history of

employment, the existence of property or business ties, evidence of

value and service to the community, proof of a genuine rehabilitation if a

criminal record exists, and other evidence attesting to a respondent's

good character (e.g., affidavits from family, friends, and responsible

community representatives). See Matter of Edwards, supra; Matter of

G—A—, 7 I. & N. Dec. 274 (BIA 1956); Matter of F—, 6 I. & N. Dec.

537 (BIA 1955); Matter of S , 6 I. & N. Dec. 392 (BIA 1954; A.G. 1955);

Matter of M , 5 I. & N. Dec. 598 (BIA 1954); Matter of G Y G--, 4 I.

—

—

—

—

& N. Dec. 211 (BIA 1950; Act'g A.G. 1951) (seventh proviso); Matter of

M , 3 I. & N. Dec. 804 (BIA 1949) (seventh proviso); Matter of V I ,

3 I. & N. Dec. 571 (BIA 1949) (seventh proviso); Matter of L—, supra;

Matter of V—, supra; Matter of G—, supra.

Upon review of the record as a whole, the immigration judge is

required to balance the positive and adverse matters to determine

whether discretion should be favorably exercised. The basis for the

immigration judge's decision must be enunciated in his opinion. In some

cases, the minimum equities inherent in eligibility for section 212(c)

relief (i.e., residence of at least seven years and status as a lawful

—

—

—

permanent resident) may be sufficient in and of themselves to warrant

favorable discretionary action. No general standard has been adopted

that applications for such relief should ordinarily be granted in the

absence of unfavorable factors, however, as an application for section

212(c) relief of necessity carries with it at least one adverse consideration (the ground of exclusion sought waived). Compare Matter of Arai,

supra (involving standards for discretionary review of application for

adjustment of status under section 245 of the Act). See also Matter of

alas, Interim Decision 2485 (BIA 1974; A.G. 1976).

The equities that an applicant for section 212(c) relief must bring

forward to establish that favorable discretionary action is warranted

will depend in each case on the nature and circumstances of the ground

of exclusion sought waived and on the presence of any additional adv erse matters. As the negative factors grow more serious, it becomes

incumbent upon the applicant to introduce additional offsetting favorable evidence, which in some cases may have to involve unusual or

outstanding equities. Such a showing at times may be required solely by

virtue of the circumstances and nature of the exclusion ground sought

waived.

The standards provided in this area have of necessity been general in

n ature. The framework for the desired equitable availability of discre-

tionary relief under section 212(c), however, is furnished by the enunciation of factors deemed relevant to the decision-mating process, the

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Interim Decision #2666

requirement that the immigration judge specify the basis for any discretionary decision reached, and the presence of this Board to review any

such decision on appeal.

It is within this context that the respondent submits that the immigration judge when exercising his discretion made a "radical departure"

from the precedent decisions of the Board. We find no such departure,

"radical" or otherwise. The immigration judge reviewed the record as a

whole after providing the respondent the complete opportunity to introduce offsetting equitable matters in his behalf. Based on the nature of

the adverse matters of record, the immigration judge concluded that

favorable discretionary action should be withheld absent a showing of

"unusual" or "outstanding" equities. Matter of Arai, supra, was cited in

this regard. We agree that such a requirement was proper in view of

both the nature of the criminal offense at issue here its recency, and

the significant period (some 30 months) for which the respondent was

confined.

The respondent objects to the immigration judge's citation to Matter

of Arai, supra. As a general rule it is prudent to avoid cross-application,

as between different types of relief from deportation, of particular

principles or standards for the exercise of discretion. In the present

ease, however, the reference to Arai concerned only the general approach stated there (i.e., the balancing of favorable and unfavorable

factors within the context of the relief sought). This may be applied to

any case involving the exercise of discretion.

Appellate counsel states that the Arai standards require a showing of

"unusual" or "outstanding" equities in every section 245 case in which

adverse factors appear. An adverse matter will be present in every

section 212(c) application. It is, therefore, submitted that if the Arai

standards are adapted in section 212(e) cases, the existence of the single

urifavorable matter inherent in such cases would improperly become the

"trigger for a showing by the applicant of a higher order of equities

• - ." This requirement, it is argued, would be "inconsistent with the

ameliorative purpose of the statute."

The problem with this analysis, however, lies in a mistaken reading of

Afatter of Arai, supra. The decision in Arai did not mandate a showing

',

of extraordinary equities in every case in which adverse matters appear. It merely indicated that dependent upon the nature of the adverse

Clear distinctions arise in the Act in the treatment of aliens convicted of drug offenses

ark d those convicted of other crimes. Compare sections 241(a)(4) and 241(a)(11). Also see

se etion 241(h)• Crwart Chow Tok v. INS, 538 F.2d 36 (2 Cir. 1976); Oliver v. INS, 517 F.2d

426 (2 Cir. 1975). In view of this disparate statutory treatment and the disfavor with

rihich we view such offenses, we require a showing of unusual or outstanding countervail1113g equities by applicants for discretionary relief who have been convicted of serious drug

°frames, particularly those involving the trafficking or sale of drugs.

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Interim Decision #2666

matters of record, such a showing might be required. This is equally

true in the context of a section 212(c) application. The immigration

judge was not mistaken in this regard as he clearly based his requirement for a showing of "unusual" or "outstanding" countervailing

equities on the nature of the unfavorable matters in the record before

him, rather than on the mere fact that adverse factors were present.

We, therefore, find no error in the immigration judge's reference to

Matter of Arai, supra.

We further agree that the equities presented by respondent did not

sufficiently offset the adverse matters of record. The respondent states

that the factors deemed relevant by the immigration judge were in large

part impermissible. In this regard, it is submitted that the immigration

judge improperly deemed the respondent's absence of close family ties

to this country to be an "adverse" matter.

A respondent, however, bears the burden of demonstrating that

discretionary relief should be exercised in his behalf. Thus, while the

absence of a particular favorable matter (e.g., close family ties) is not an

"adverse" factor, it will of necessity make it more difficult for a respon, dent to successfully establish that he warrants the relief sought. Here,

it is clear from the immigration judge's decision that he did not treat the

respondent's familial status as a negative factor requiring a showing of

countervailing equities. He merely noted the absence of family ties in

Lhe context of the respondent's failure to allow sufficient equities to

offset the specified adverse matters.

We find no merit to the challenge to the other considerations cited by

the immigration judge in reaching his decision on the exercise of discretion (e.g., the presence of a brother and sister in Colombia; the absence

of a showing of unusual "hardships" if deported) for the same reasons

noted above. Each factor cited was relevant to the issue of whether

discretion should be favorably exercised, and each was considered by

the immigration judge in the context of finding that the respondent had

failed to come forward with sufficient equities to offset the significant

unfavorable evidence.

As an additional, but related, basis of appeal, the respondent submits

that new standards must be adopted with specific regard to the treatment of applications for section 212(c) relief filed by imprisoned aliens_

It is stated that the Board has required applicants with a criminal

record to demonstrate a "positive rehabilitation" before discretionary

relief will be granted. The respondent submits that we have tied this

showing of rehabilitation exclusively to time-based factors (i.e., the

recency of the offense or fact of present confinement). The result, it is

argued, is that a District Director by merely electing to issue an Order

to Show Cause while an alien is confined can effectively preclude any

successful application by that respondent for section 212(c) relief. This

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Interim Decision #2666

leads the respondent to the "inescapable conclusion" that under the

Board's present standards the prosecution of incarcerated aliens is

"selective," "impermissible," and clearly at variance with the due process and equal protection clauses of the United States Constitution. It is

urged that the remedy to this perceived constitutional defect is either

for the Board to adopt revised standards which would permit an incarcerated alien to demonstrate his "entitlement to relief without regard to

the fact that he is currently confined" and without use of a "time-based

measure . . : of reformation" or for the Board to "forbid the commencement of proceedings altogether [against incarcerated aliens] until [they

have] been permitted a sufficient period [to demonstrate their] reformation."

We find no merit to this ground of appeal. It is true that applicants for

section 212(c) relief who have criminal records will ordinarily be required to make a showing of rehabilitation. It is also true that this Board

has found both the fact of confinement and the recency of the offense to

be relevant to the question of whether rehabilitation has been established. However, although those factors may ultimately in given cases

be determinative of the issue, we have never adopted a "conclusive"

time-based standard of reformation that creates an irrebuttable presumption that a confined alien can never establish either that he is

rehabilitated or that relief should otherwise be granted. 5

Confined aliens and those who have recently cumulated eihninal acts

Nvill have a more difficult task in showing that discretionary relief should

be exercised in their behalf than aliens who have committed the same

offenses in the more distant past. Dependent upon the nature of the

offense and the circumstances of confinement, it may well be that a

confined respondent will not be able to demonstrate rehabilitation. This

does not mean, however, that different and constitutionally defective

standards are applied to aliens, depending on whether they are recent

criminals, in confinement, or released ex-offenders. The same test for

the exercise of discretion is applied to each category of aliens. It is the

factual circumstances that the alien finds himself in as a result of his own

misconduct that results in the varying difficulty for successful application for discretionary relief. This fact does not mandate that standards

be adopted which ignore considerations clearly relevant to the issue of

a The cases cited by respondent in this regard, with one exception, merely found that

the passage of time without further criminal activity was indicative of rehabilitation. See,

For example, Matter of G—A—, supra.; Matter of —, supra. InMatter of Carrasco, supra.

We found simply that on the facts there before us discretionary relief was appropriately

denied the respondent in view of the recency of his conviction and the nature of his crime

(importing 26 pounds of marihuana). None of the cases cited held that confined or recently

c onvicted aliens could never establish that discretionary relief under section 212(c) wao

warranted.

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Interim Decision #2666

rehabilitation and the exercise of discretion. Nor does it compel a

District Director to withhold instituting proceedings in cases where an

alien is either recently convicted or still confined in order to give the

alien a better opportunity to demonstrate his rehabilitation. See section

242(h) of the Act, 8 U.S.C. 1252(h).

In any case involving discretionary relief, the timing of the issuance of

the Order to Show Cause can have a significant effect on either statutory eligibility for the relief sought or on the circumstances relevant to

the exercise of discretion. That fact alone, however, does not render a

District Director's decision to institute proceedings suspect. The respondent cites Lennon, v. United States, 387 F. Supp. 561 (S.D. N.Y.

1975) (involving an allegation that deportation proceedings were instituted against an alien solely because of his lawful exercise of constitutional rights). We find no allegation or evidence, however, of an abuse of

discretion of the nature at issue in Lennon. 6

We finally note in this regard that the decision to institute deportation

proceedings is vested hi the discretion of the District Director. 8 C.F.R.

242.1(a). This Board is an administrative body of limited jurisdiction and

is not the proper forum in which to seek review of the rationale underlying a District Director's decision to issue an Order to Show Cause.

Matter of Lennon,, Interim Decision 2304 (BIA 1974), rev'd on other

grounds, Lennon v. INS, 527 F.2d 187 (2 Cir. 1975); Matter of

Gcroninzo, 13 I. & N. Dec. 680 (BIA 1971).

Upon review of the record, we conclude that the immigration judge's

decision is supported by both law and fact. We find no merit to the

arguments advanced on appeal by the respondent. The appeal will

accordingly be dismissed.

ORDER: The appeal is dismissed.

° The respondent notes that the New York and Buffalo districts of the Service and the

New York State Department of Correctional Services (D.O.C.S.) have entered into an

agreement by which each will cooperate to locate the expeditiously determine the immigration status of aliens incarcerated in the New York State Correctional System. Respondent concedes that the agreement not only is of benefit to the Service and the D.O.C.S.,

but also is of benefit in several ways to the alien. We find nothing arising from this

agreement that eitimi indicates or implies a. District Director's abdication of discretion or

abase thereof.

589