Paredes-Urrestarazu v. U.S. I.N.S.

• Decision Date: 23 August 1994
• Docket Number: No. 91-70143,PAREDES-URRESTARAZ,P,91-70143
• Citation: 36 F.3d 801
• Parties: Byronetitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 801

36 F.3d 801

63 USLW 2149

Byron PAREDES-URRESTARAZU, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 91-70143.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 9, 1993.

Opinion Filed April 25, 1994.

Opinion Withdrawn Aug. 23, 1994.

Decided Aug. 23, 1994.

Vera A. Wisz, Los Angeles, CA, for petitioner.

Francesco Isgro, U.S. Dept. of Justice, Washington, DC, for respondent.

Petition For Review of a Decision of the Board of Immigration Appeals.

Before: TANG, D.W. NELSON, and LEAVY, Circuit Judges.

ORDER

The opinion filed April 25, 1994, slip op. 3973, and appearing at 22 F.3d 909 (9th Cir.1994), is withdrawn.

The petition for rehearing, filed May 24, 1994, is denied.

OPINION

D.W. Nelson, Circuit Judge:

Byron Paredes-Urrestarazu ("Petitioner") petitions this court for review of a decision of the Board of Immigration Appeals ("BIA" or "Board") that found him deportable under section 241(a)(2)(A)(ii) of the Immigration and Nationality Act ("INA" or "Act"), 8 U.S.C. 1251(a)(2)(A)(ii), and denied him discretionary relief from deportation under section 212(c), 8 U.S.C. Sec. 1182(c). Petitioner contends that the Board erred as a matter of law by failing to adhere to the provisions of the California pretrial diversion program, Cal.Penal Code Secs. 1000-1000.5 (Deering 1983 & Supp.1993), in determining whether he warranted section 212(c) relief. In addition, Petitioner maintains that the BIA abused its discretion by erroneously determining that he failed to establish rehabilitation and that he gave false testimony. We have jurisdiction pursuant to 8 U.S.C. Sec. 1105a, and now affirm.

I. Factual and Procedural Background

Petitioner is a native and citizen of Guatemala. In 1970, at the age of 12, he was admitted into the United States as a lawful permanent resident. In 1979, Petitioner was convicted of five counts of armed robbery stemming from gang-related acts committed on May 4 and August 24, 1979, and served three years of a five year sentence prior to release on parole. On February 4, 1983, the day after Petitioner's incarceration ended, the Immigration and Naturalization Service ("INS" or "Service") commenced deportation proceedings against him, contending that he was deportable under section 241(a)(2)(A)(ii) of the Act for having been convicted of two crimes involving moral turpitude. Although Petitioner was scheduled to appear before an immigration judge in San Francisco on February 10, 1983, he requested and received a transfer of his case to Los Angeles.

Subsequently, in 1986, Petitioner was arrested and charged with possession of narcotics. Instead of standing trial for the offense, Petitioner entered a pretrial diversion program pursuant to California Penal Code section 1000.2. ¹ In 1987, after successful completion of his probation, the charges against Petitioner were dismissed in accordance with the provisions of the program. See Cal.Penal Code Sec. 1000.3 (Deering 1983).

The deportation hearing was held on July 13, 1988. During the questioning, counsel for the INS asked Petitioner's wife if Petitioner had been arrested in 1986. Petitioner's counsel objected, contending that section 1000.5 of the California Penal Code, Cal.Penal Code Sec. 1000.5 (Deering 1983) ("section 1000.5"), ² prevented either Petitioner or his wife from having to answer this question. See Admin.Rec. at 82-86. The immigration judge ("IJ") overruled the objection, and Petitioner eventually testified as to the details and circumstances of the arrest. Petitioner's counsel also objected on the same ground to the introduction into evidence of the FBI "rap sheet" that indicated the fact of the 1986 arrest. The IJ, however, permitted its introduction. Id. at 119-20.

Based on the armed robbery convictions, the immigration judge found Petitioner deportable as charged. Turning to the request for section 212(c) relief, the IJ concluded that Petitioner's seventeen year presence in the country, in addition to the fact that his wife, child, and numerous relatives either were United States citizens or lawful permanent residents, indicated that he had "outstanding equities." Admin.Rec. at 49. However, the IJ found these positive factors outweighed by numerous others that demonstrated his "bad character and undesirability as a permanent resident in the United States." Id. In addition to Petitioner's prior convictions, abuse of PCP, lack of evidence of community involvement, and apparent false testimony regarding his military service, the IJ also considered the facts surrounding Petitioner's 1986 arrest, including that Petitioner directed to the arresting officers who attempted a body search an "obscenity [that] indicate[d] his disrespect for enforcement officers." Id.

Petitioner appealed the IJ's decision to the BIA, which affirmed. Engaging in a de novo review of the record, the BIA agreed with the IJ that Petitioner exhibited "unusual and outstanding" equities. Admin.Rec. at 10. However, like the IJ, the Board concluded that these equities were "outweigh[ed by] very serious adverse" factors. Id. The Board emphasized the gang-related 1979 armed robberies, Petitioner's 1979 general court-martial and dishonorable discharge from the military, his false testimony concerning his military service, and his past drug abuse.

The Board also considered explicitly the 1986 arrest, maintaining that it "demonstrate[d] [Petitioner's] continuing disrespect for the law and probable continued use of drugs." Admin.Rec. at 10. Rejecting Petitioner's argument that section 1000.5 permitted him to refuse to acknowledge his arrest and prohibited the INS from introducing the FBI report, the Board concluded that "the immigration judge correctly considered the respondent's 1986 arrest and completion of a diversion program.... [Petitioner's] acts had legal consequences and can be properly considered by this Board in determining bad character, disrespect for the law and rehabilitation." Id. at 9. Finally, the Board determined that, although Petitioner had "shown on the surface a semblance of family life and employment" the evidence did not establish rehabilitation which, the Board asserted, "is an important element of [section] 212(c) relief." ³

Petitioner now contends that the BIA's consideration of his 1986 arrest constituted reversible error because it violated California Penal Code section 1000.5. That provision expressly permits an accused who successfully completes the pretrial diversion program to indicate in response to questioning related to an offense that "he was not arrested or diverted for such [an] offense," and prohibits, without the divertee's consent, the use of "a record" of that arrest to deny the divertee "any ... benefit." Cal.Penal Code Sec. 1000.5 (Deering 1983). Petitioner also maintains that the BIA abused its discretion in denying him section 212(c) relief by erroneously determining that he gave false testimony and did not adequately demonstrate rehabilitation. ⁴ We find these arguments without merit.

II. The Elements of Section 212(c) Relief and the Standard of Review

Section 212(c) permits the Attorney General to grant discretionary relief from deportation or exclusion to lawful permanent residents who meet the statute's seven year residency requirement. See 8 U.S.C. Sec. 1182(c) (1988); Lepe-Guitron v. INS, 16 F.3d 1021, 1023 (9th Cir.1994) (noting that section 212(c), despite its reference only to the exclusion of aliens, applies to deportation proceedings). As we explained in Yepes-Prado v. INS, 10 F.3d 1363 (9th Cir.1993):

In exercising his responsibility, an IJ must determine whether to grant section 212(c) relief based on all the facts and circumstances of a particular case, taking into account the social and humane considerations presented in an applicant's favor and balancing them against the adverse factors that evidence the applicant's undesirability as a permanent resident. In re Edwards, Interim Dec[.] No. 3134, 1990 WL 385757, 1990 BIA .

The BIA has enumerated several factors to be considered in determining whether or not to grant a section 212(c) petition. Favorable considerations include: 1) family ties within the United States; 2) residence of long duration in this country (particularly when residence began at a young age); 3) hardship to the petitioner or petitioner's family if relief is not guaranteed; 4) service in the United States armed forces; 5) a history of employment; 6) the existence of business or property ties; 7) evidence of value and service to the community; 8) proof of rehabilitation if a criminal record exists; 9) other evidence attesting to good character. Id. 1990 WL 385757, 1990 BIA LEXIS 8, at 10-11. To be weighed against these factors are: 1) the nature and underlying circumstances of the exclusion or deportation ground at issue; 2) additional violations of the immigration laws; 3) the existence, seriousness, and recency of any criminal record; 4) other evidence of bad character or the undesirability of the applicant as a permanent resident. Id. 1990 WL 385757, 1990 BIA LEXIS 8, at 11.

Yepes-Prado, 10 F.3d at 1365-66 (footnotes omitted). In this weighing process, "[a]s the negative factors grow more serious, it becomes incumbent upon the alien to introduce additional offsetting favorable evidence, which in some cases may have to involve unusual or outstanding equities." In re Roberts, Interim Dec. No. 3148, 1991 WL 353515, 1991 BIA LEXIS 9, at * 5. A single serious crime or a pattern of misconduct can trigger a need to make this showing, id., and to warrant a favorable exercise of discretion, an applicant with a criminal record "will ordinarily be required to present evidence of rehabilitation," id. 1991 WL 353515, 1991 BIA LEXIS 9, at * 6. However, "there are cases in which the adverse considerations are so serious that a favorable exercise [of discretion] is not warranted even in the face of unusual or outstanding equities." Yep...