Hajiani-Niroumand v. I.N.S.

• Decision Date: 09 June 1994
• Docket Number: P,HAJIANI-NIROUMAN,No. 93-3072,93-3072
• Citation: 26 F.3d 832
• Parties: Hamzehetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 832

26 F.3d 832

Hamzeh HAJIANI-NIROUMAND, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 93-3072.

United States Court of Appeals,

Eighth Circuit.

Submitted March 15, 1994.

Decided June 9, 1994.

Clayton H. Brant of Lincoln, NE, for appellant.

David M. McConnell of the Office of Immigration Litigation, Dept. of Justice, Washington, DC, for appellee.

Before McMILLIAN, WOLLMAN and BEAM, Circuit Judges.

McMILLIAN, Circuit Judge.

Hamzeh Hajiani-Niroumand seeks review of a final order of the Board of Immigration Appeals (BIA) denying his applications for asylum and for withholding of deportation under Sections 208 and 243(h) of the Immigration and Nationality Act (INA), 8 U.S.C. Secs. 1158(a), 1253(h) (1988), and petition for a waiver of deportation under Sec. 212(c) of the INA, 8 U.S.C. Sec. 1182(c). ¹ Matter of Hajiani-Niroumand, No. A30-961-800 (B.I.A. May 20, 1993). Petitioner argues the BIA abused its discretion in determining that he failed to demonstrate sufficient countervailing equities in his favor which would have entitled him to a Sec. 212(c) waiver of deportation. Petitioner also contends that the BIA abused its discretion in concluding that he failed to demonstrate that he had a well-founded fear of persecution, or that a clear probability existed that he would be persecuted, for his religious beliefs and political opinion, if deported to Iran. For the reasons discussed below, we deny the petition for review.

I. BACKGROUND

Hajiani-Niroumand, a forty-four-year-old native and citizen of Iran, was legally admitted into the United States as a permanent resident in 1973 based upon his marriage to a United States citizen, Barbara Bourne. He has remained in the United States to this date. Petitioner and Bourne had one child, Gabriel, and were divorced in 1975. Petitioner has not seen Gabriel for many years, and Gabriel was adopted by Bourne's second husband.

While residing in the United States, petitioner received numerous state convictions, including three convictions for driving while intoxicated, petty larceny, passing bad checks, criminal trespass, and third degree assault. In 1978 petitioner was convicted for possession of marijuana and received four months probation. In 1986 petitioner was convicted on two counts of sexually assaulting two children under the age of fourteen and sentenced to fifteen months to four years on each count to run concurrently.

After his convictions for possession of marijuana and sexual assault, the Immigration and Naturalization Service (INS) issued a show cause order charging petitioner with deportability under 8 U.S.C. Sec. 1251(a)(4), (11). Section Sec. 1251(a)(4) requires deportation of any alien who "is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more." Section Sec. 1251(a)(11) requires deportation of any alien who is "convicted of a violation of, or a conspiracy to violate, any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marihuana."

The immigration judge found that petitioner was not deportable under Sec. 1251(a)(4) on the basis of his conviction for sexual assault on minors because, although for a crime of moral turpitude, his conviction occurred in 1986, more than five years after his entry in 1973, as required to sustain a charge of deportability under that provision. However, the immigration judge found petitioner deportable under Sec. 1251(a)(11) because of his 1978 conviction for possession of marijuana.

At his deportation hearing petitioner filed an application for asylum and for withholding of deportation. Petitioner also filed an application for a Sec. 212(c) waiver of deportation, contending that countervailing equities in his favor outweighed the adverse factors supporting deportation. The immigration judge denied the requested relief and the BIA affirmed. Petitioner appeals.

II. DISCUSSION

Petitioner first argues that the BIA's denial of a Sec. 212(c) waiver of deportation was an abuse of discretion. We review the BIA's decision to deny petitioner's application for Sec. 212(c) relief for an abuse of discretion. Varela-Blanco v. INS, 18 F.3d 584, 587 (8th Cir.1994) (Varela-Blanco ) (per curiam) (citing Rodriguez-Rivera v. INS, 993 F.2d 169 170 (8th Cir.1993) (Rodriguez-Rivera ) (per curiam)). The BIA has abused its discretion if the decision is without rational explanation, departs from established policies, or invidiously discriminates against a particular race or group. Rodriguez-Rivera, 993 F.2d at 170. Petitioner claims the BIA abused its discretion by deviating from established BIA policies.

Section Sec. 212(c) gives the Attorney General discretion to waive the inadmissibility of certain eligible aliens. 8 U.S.C. Sec. 1182(c). In the present case, it is undisputed that petitioner was statutorily eligible for a Sec. 212(c) waiver of deportation. ² However, Sec. 212(c) does not automatically provide a waiver for all those eligible. Rather, the grant of a Sec. 212(c) waiver is within the BIA's discretion. Varela-Blanco, 18 F.3d at 586 (Attorney General delegated discretionary authority to director of INS) (citing Cordoba-Chaves v. INS, 946 F.2d 1244, 1247 (7th Cir.1991)); Vargas v. United States Dep't of Immigration, 831 F.2d 906, 908 (9th Cir.1987).

In considering applications for waivers of deportation, the BIA has refused to adopt a rigid test, preferring instead to examine the individual merits of each case. The BIA must balance the social and humane factors presented by the alien against the adverse factors including the undesirability of the alien as a permanent resident. Matter of Marin, 16 I. & N. Dec. 581, 584-85 (B.I.A.1978) (Marin ); see also Varela-Blanco, 18 F.3d at 586 (citing Espinoza v. INS, 991 F.2d 1294, 1297 (7th Cir.1993)).

Among the factors to be weighed in an alien's favor when balancing the equities are: (1) the existence of family ties within the United States; (2) length of residence in the United States; (3) entry into this country at a young age; (4) hardship to the alien and family if deported; (5) history of employment; (6) service in this country's military; (7) property or business ties, (8) community service; (8) when there is a criminal record, proof of genuine rehabilitation; and (9) any other good character evidence. See Matter of Buscemi, 19 I. & N. Dec. 628, 633 (B.I.A.1988) (Buscemi); Varela-Blanco, 18 F.3d at 586.

However, the BIA also considers negative factors including (1) the nature and circumstances of the crime giving rise to deportation; (2) additional significant immigration violations; (3) the existence, nature, recency, and seriousness of the petitioner's criminal record; and (4) any other negative character evidence. See Marin, 16 I. & N. Dec. at 584-85.

As the adverse factors grow more serious, the BIA may require the alien to present a heightened level of favorable considerations which show unusual or outstanding countervailing equities. Id.; see Varela-Blanco, 18 F.3d at 586. As stated above, petitioner has a serious, lengthy, criminal record, including a conviction for sexually assaulting two children under the age of fourteen, and a conviction for possession of marijuana. The BIA determined that the seriousness of petitioner's criminal record required that he demonstrate unusual or outstanding countervailing equities. Petitioner does not challenge this finding. Rather, petitioner argues the BIA abused its discretion in determining that the favorable evidence introduced failed to offset the adverse factors.

In examining petitioner's favorable factors, the BIA first considered the duration of his residence in the United States. The BIA observed that petitioner had lawfully resided in this country for twenty years. However, the BIA specifically found that, in those twenty years, petitioner had not developed significant ties to this country. The BIA noted that, although petitioner's sister resides in this country, he sees her infrequently. While petitioner's son resides in the United States, petitioner has had little, if any, contact with him for many years. Consequently, although a favorable factor, petitioner's lengthy duration of residency in the United States was not an unusual or outstanding equity.

The BIA also found that neither petitioner nor his family would suffer significant hardship if he were deported. There was no record of child support, petitioner does not pay financial support to his sister, and petitioner himself was unable to show that he could not adjust to life or provide for his needs in Iran. Further, there was no record of community service in this country, and petitioner has no significant property or business ties to the United States.

In the final part of its analysis, the BIA observed that petitioner had failed to demonstrate evidence of rehabilitation. In this regard, the BIA stated "we note that [petitioner] has a number of convictions for crimes of increasing severity and insofar as some involve mistreatment of defenseless children and individuals, we are unpersuaded that he is not a danger to society." Further, petitioner continued to deny guilt of sexually abusing those children and demonstrated no remorse. The BIA concluded that petitioner's "showing on this issue is not a positive one and is clearly insufficient, even when combined with the other factors in his case, to warrant a grant of the requested relief from deportation." The BIA therefore affirmed the immigration judge's determination and dismissed the appeal.

Specifically, petitioner contends that the BIA's finding that he failed to demonstrate unusual or outstanding countervailing equities inexplicably departed from the BIA's finding that outstanding countervailing equities existed under similar facts in Buscemi. Petitioner contends that his positive factors are...