Gandarillas-Zambrana v. Board of Immigration Appeals

• Decision Date: 20 January 1995
• Docket Number: No. 94-1248,GANDARILLAS-ZAMBRANA,94-1248
• Citation: 44 F.3d 1251
• Parties: Nelson, a/k/a Oscar Jr. Gandarillas, a/k/a Nalson Gandarillos, Petitioner, v. BOARD OF IMMIGRATION APPEALS, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1251

44 F.3d 1251

Nelson GANDARILLAS-ZAMBRANA, a/k/a Oscar Jr. Gandarillas a/k/a Nalson Gandarillos, Petitioner, v. BOARD OF IMMIGRATION APPEALS, Respondent.

No. 94-1248.

United States Court of Appeals Fourth Circuit.

Argued Nov. 3, 1994.

Decided Jan. 20, 1995.

ARGUED: Donald Louis Schlemmer, Washington, DC, for petitioner. Teresa Ann Wallbaum, U.S. Dept. of Justice, Washington, DC, for respondent. ON BRIEF: Claudia J. Zucker, Washington, DC, for petitioner. Frank W. Hunger, Asst. Atty. Gen., David J. Kline, Asst. Director, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, DC, for respondent.

Before ERVIN, Chief Judge, WIDENER, Circuit Judge, and PHILLIPS, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge PHILLIPS wrote the opinion, in which Chief Judge ERVIN and Judge WIDENER joined.

OPINION

PHILLIPS, Senior Circuit Judge:

Petitioner Nelson Gandarillas-Zambrana, a Bolivian national who has been ordered deported, appeals an order of the Board of Immigration Appeals ("BIA") denying his application for a discretionary waiver of deportation under section 212(c) of the Immigration and Nationality Act ("INA"), as amended 8 U.S.C. Sec. 1182(c). Finding no abuse of discretion, we affirm the decision of the BIA.

I.

Gandarillas is a native of Bolivia. He immigrated to the United States in 1981. While living in this country, Gandarillas has been convicted of a series of misdemeanor crimes in three states and the District of Columbia during the years between 1984 and 1992. Among these were two convictions in Virginia for petit larceny, one in 1988 and one in 1991, which became the basis for an Order to Show Cause why he should not be deported, issued by the Immigration and Naturalization Service ("INS") in 1993.

Pursuant to the Show Cause order, Gandarillas appeared before an Immigration Judge ("IJ") in Oakdale, Louisiana. At this hearing, the IJ asked him if he could understand English, to which Gandarillas responded "yes." The IJ told Gandarillas to notify him if he could not understand something that was said in English. The IJ also notified him of his right to counsel, ensured that he had been given a list of free and inexpensive legal services, and postponed the hearing to allow him time to obtain counsel. Nevertheless, when the hearing resumed, Gandarillas appeared without counsel and, after being asked if he needed more time to find a lawyer, stated, "No. I would li--like to speak in my own behalf." AR at 143.

At the hearing, Gandarillas admitted the larceny convictions, thereby conceding deportability. He then applied for relief from deportation under section 212(c). At the relief hearing, the IJ confirmed that Gandarillas could understand English. Once again, Gandarillas appeared without counsel.

At this hearing, Gandarillas testified to the following facts. He is a citizen of Bolivia. He entered the United States as a legal permanent resident on September 14, 1981, at the age of 15 years. He has lived in the United States ever since, except for ten months during 1986 when he served in the Bolivian army. He worked for a construction company from 1985 to 1986, and, after returning from his military service in Bolivia, he worked for another construction company until 1991. He began work as a private security officer in 1991, and has also worked with his brothers doing construction work. He has not served in the American military.

Gandarillas has no relatives in Bolivia. His four brothers, two sisters, and his mother reside in America. His father is dead, and he is single with no children. No one living in America is financially dependant on him; his mother was disabled by a back injury, but his siblings are available to support her. He contributed $8,000 to the down payment on the $175,000 house in Virginia that he owns with his mother and siblings; he contributed to the mortgage except while in jail for petit larceny. His mother lives in that house with three of his siblings.

Besides the two petit larceny convictions, Gandarillas's criminal record includes convictions for failure to identify himself to police, possession of a concealed weapon (twice), assault against a police officer, destruction of property, assault (three times), theft, attempted theft (twice), harassment, and obstructing and hindering police. All of these were misdemeanors; many occurred in violation of probation. In addition, he was arrested for making terroristic threats and disorderly conduct, but fled the state before being tried. He has also been arrested for numerous other offenses including possession of marijuana, abduction, and conspiracy to commit burglary, but these charges were "nolle prossed" or dismissed in return for guilty pleas to other charges.

He was under the influence of alcohol at the time of many of his offenses, and admits to a drinking problem. He was expelled after one month of a three-month alcohol treatment program, but later completed a similar program while incarcerated. He claimed not to have drunk any alcohol during the year prior to his deportation hearing. He believes that remaining sober will be a challenge for him for the rest of his life. He hopes to return to school to earn a high school diploma, to find a job, and to return home to live with his mother. He testified that he believes that the Bolivian economy is poor but presented no proof. He expressed concern that his job prospects in Bolivia are slim, but admits that he can speak Spanish, the national language. Finally, Gandarillas submitted documents to support his claim of rehabilitation, including letters from family members, his employer, a member of a non-profit dance troupe to which he belonged, and a Georgetown law student regarding Gandarillas's participation in the D.C. Street Law program. The IJ found that the tenor of these was generally pleading for a second chance for Gandarillas rather than testifying to his complete rehabilitation. He also submitted certificates of completion from an alcohol rehabilitation program and a vocational program.

The IJ considered the evidence and balanced the positive factors weighing in Gandarillas's favor against the negative factors evidencing his undesirability as a permanent resident. The IJ found that Gandarillas's "total criminal history ... [is] a serious adverse factor in the exercise of [the IJ's] discretion which may be overcome, if at all, only by a showing of outstanding or unusual equities," and that the "positive equities displayed by [Gandarillas] do not rise to the level of outstanding or unusual so as to outweigh the serious adverse factors of his long criminal record and long history of alcohol abuse." AR at 25-26. Consequently, the IJ exercised his discretion in favor of denying his application for waiver of deportation. The BIA affirmed, adopting without restating the IJ's reasoning. Gandarillas petitions this Court for review.

II.

This Court has jurisdiction under 8 U.S.C. Sec. 1105a to review only "final orders of deportation" entered after exhaustion of all administrative remedies. Huaman-Cornelio v. BIA, 979 F.2d 995, 999 (4th Cir.1992). Because the BIA is the highest administrative tribunal, we usually review only its findings and final order, rather than those of the IJ. Id. However, here the BIA adopted the findings and reasoning of the IJ in a one-paragraph per curiam opinion. We hereby adopt the rule of the Tenth Circuit and hold that if the BIA "chooses to rely on the express reasoning of the [IJ] ..., that reasoning will be the sole basis for our review, and if we find that reasoning inadequate, we will ... reverse the holding of the [IJ]." Panrit v. INS, 19 F.3d 544, 546 (10th Cir.1994). The decision whether to grant a waiver of deportation is committed to the sound discretion of the Attorney General or her delegate (here, the IJ), and we review that decision for abuse of discretion. Casalena v. INS, 984 F.2d 105, 106 (4th Cir.1993).

Gandarillas actually seeks by his petition for review to challenge the agency decision on two levels. First, that in various respects the proceedings leading to that decision violated his constitutional due process rights. Second, that the decision itself involved an abuse of agency discretion by failing properly to weigh the relevant factors.

We will take these in order.

III.

Gandarillas contends that the agency proceedings violated his rights to procedural due process in four ways: (1) by holding the waiver of deportation hearing at a place so distant from his place of residence that his right to counsel and to present witnesses was prejudiced; (2) by the IJ's failure to act impartially in the course of questioning him at the hearing; (3) by not providing him with a Spanish translator; and (4) by having him appear at the hearing in prisoner's clothing. He claims that these violations so prejudiced his rights to a fundamentally fair hearing that a new proceeding free of their prejudicial effects should be ordered.

At the outset, the INS contends that because these constitutional claims were not raised before the BIA, Gandarillas has waived them. Although a failure to raise claims before the BIA does ordinarily constitute a waiver that precludes their consideration on judicial review, Farrokhi v. INS, 900 F.2d 697, 700-01 (4th Cir.1990), Gandarillas urges us to recognize an exception to this general rule for denial of due process claims, as he contends the Ninth Circuit did in Vargas v. Department of Immigration, 831 F.2d 906, 908 (9th Cir.1987).

As we did in Farrokhi, we can avoid deciding here whether such an exception should be recognized and, if so, its scope, because here, as in Farrokhi, the claims are demonstrably without merit. Farrokhi, 900 F.2d at 701. While an alien is of course entitled to the constitutional protections of due process in deportation proceedings, The Japanese Immigrant, 189 U.S. 86, 100-01, 23 S.Ct. 611, 614-15, 47 L.Ed. 721 (1903), the...