45 F.3d 1379 (9th Cir. 1995), 93-70868, Alaelua v. I.N.S.

Docket Nº:93-70868.
Citation:45 F.3d 1379
Case Date:January 30, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1379

45 F.3d 1379 (9th Cir. 1995)

Lipoi ALAELUA, Petitioner,



No. 93-70868.

United States Court of Appeals, Ninth Circuit

January 30, 1995

Argued and Submitted Nov. 3, 1994.

Page 1380

William D. Hoshijo, Honolulu, HI, for petitioner.

Robert Kendall, Jr., Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service.

Before: BROWNING, TROTT and KLEINFELD, Circuit Judges.

KLEINFELD, Circuit Judge:

The only issue in this appeal is how we review a Board of Immigration Appeals affirmance which adopts the decision of the immigration judge, instead of articulating the Board's reasons in its own words.


Alaelua came to the United States from Western Samoa in 1978, when he was 21. He was admitted as a lawful permanent resident. In 1987, he was convicted of selling heroin five times on five separate dates during May of 1986. Despite the apparent seriousness of the conviction, he was sentenced only to probation and restitution of $880, the money which the undercover agent paid him for the narcotics. After this criminal conviction, he was ordered to show cause why he should not be deported. He conceded deportability, and applied for section 212(c) relief under 8 U.S.C. Sec. 1182(c).

The Immigration Judge (IJ) who heard the evidence carefully recited the factors bearing upon this discretionary decision, then explained orally why he thought the better exercise of discretion in this particular case was to deny relief. Here is the critical portion of his oral decision:

In regard to the adverse factors in this case, we note that the respondent, has been convicted of five felony counts of distributing a dangerous drug. Given the serious nature of these crimes, and their relative recency, it is necessary for the respondent to demonstrate unusual or outstanding

Page 1381

equities in order for a favorable exercise of discretion to be considered.

In his favor, the respondent has shown that he has resided in this country for some ten and a half years, and that such residence began when he was only 24 years old. Moreover, the record reflects that the respondent's immediate family resides in this country either as United States citizens or lawful permanent residents. Furthermore, the respondent has demonstrated that he is closely tied to his family, that he does provide financial support for his wife, two children, and his parents. The record...

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