Dashto v. I.N.S., 94-2166

• Decision Date: 11 July 1995
• Docket Number: No. 94-2166,94-2166
• Citation: 59 F.3d 697
• Parties: Abdul DASHTO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 697

59 F.3d 697

Abdul DASHTO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 94-2166.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 9, 1994.

Decided July 11, 1995.

Jules E. Coven, New York City, argued, for Abdul Dashto.

Samuel Der-Yeghiayan, I.N.S., James B. Burns, Office of the U.S. Atty., Chicago, IL, William J. Howard, Mark C. Walters, Teresa A. Wallbaum (argued), U.S. Dept. of Justice, Civ. Div., Immigration Lit., David J. Kline, Dept. of Justice, Office of Immigration Lit., Washington, DC, for I.N.S.

Before FLAUM, EASTERBROOK, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

After Abdul Dashto pled guilty to a series of robberies, the Immigration and Naturalization Service sought to have him deported to his native Syria. Based upon a clerk's certificate indicating that one of the robberies involved a handgun, the Board of Immigration Appeals found Dashto ineligible for discretionary relief from deportation under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1182(c). The Board found, alternatively, that even if Dashto were eligible, a grant of relief would not be warranted. We conclude that the clerk's certificate in this case constituted insufficient evidence that Dashto had been convicted of a firearms offense, and that Dashto was therefore eligible for relief under section 212(c). However, we find no abuse of discretion in the Board's decision that Dashto did not warrant such relief. We likewise find no error in the Board's conclusion that Dashto did not merit adjustment of status pursuant to section 245(a) of the Act, 8 U.S.C. Sec. 1255(a). We therefore deny Dashto's petition for review and affirm the order of deportation.

I.

Dashto is a native and citizen of Syria. He was admitted to permanent residence in the United States along with his family in 1977 when he was nine years old and has lived here since that time.

Over a period of six to eight weeks in 1989, Dashto took part in a series of convenience store robberies. He was eventually arrested and indicted. In December 1991, he pled guilty in an Illinois court to three counts of robbery and three counts of armed robbery, each based on a separate incident in the 1989 robbery spree. Each of the armed robbery counts charged the use of a dangerous weapon, but the type of weapon was not identified. Dashto was also charged with unlawful restraint and aggravated unlawful restraint, but he was not convicted on either of those two counts. The Illinois court imposed concurrent prison terms of six years on each of the robbery counts on which Dashto was convicted. Dashto began serving the sentence on January 2, 1992.

In March 1993, the INS issued an order to show cause why Dashto should not be deported (1) for having been convicted of at least two crimes of moral turpitude (Sec. 241(a)(2)(A)(ii); see Soetarto v. INS, 516 F.2d 778, 780 (7th Cir.1975) ("Theft has always been held to involve moral turpitude, regardless of the sentence imposed or the amount stolen.")), and (2) for having been convicted of an aggravated felony (Sec. 241(a)(2)(A)(iii)). Six months later, the INS lodged an additional charge asserting that Dashto should be deported pursuant to section 241(a)(2)(C) of the Act for having been convicted of unlawfully using a firearm. 8 U.S.C. Sec. 1251(a)(2)(C).

In September 1993, an Immigration Judge conducted a deportation hearing. As proof of Dashto's deportability, the INS tendered certified records of conviction and copies of the underlying indictments. Dashto conceded that these were sufficient to establish that he was subject to deportation under section 241(a)(2)(A)(ii) and (iii). But he denied that he had been convicted of any firearms offense that would render him subject to deportation under section 241(a)(2)(C). This dispute is key, because if the evidence establishes that Dashto has committed a firearms offense within the ambit of section 241(a)(2)(C), he cannot seek relief from deportation under section 212(c).

As proof that Dashto had committed a firearms offense, the INS relied on a "Certified Statement of Conviction" supplied by an Illinois clerk of court indicating that Dashto had pled guilty to a charge of "armed robbery with a deadly weapon, to wit a handgun." A. 315. Dashto contended that the certificate was inaccurate, and testified before The Immigration Judge went on to conclude that the equities entitled Dashto to a discretionary waiver of inadmissibility:

                the Immigration Judge that in actuality, the only weapon used during the robberies was a knife, not a handgun.  A. 170.  The Immigration Judge found the certificate to be insufficient evidence that Dashto had been convicted of a firearms offense, reasoning that "[t]his is only a Clerk of Court record, and does not accurately reflect what, in fact, [Dashto] was indicted for."   A. 48.  In light of that finding, the Immigration Judge deemed Dashto eligible for relief under section 212(c)
                

[T]he Court notes that [Dashto] entered the United States at the age of nine, and has resided in this country for more than sixteen years. [He] has lost touch with any remaining family in Syria, and it is apparent from the record that a return to Syria at the present time would cause him great hardship. Of significance also in this case was [Dashto's] family ties. It is apparent from the record that all of [his] immediate family reside in the United States, and I believe [Dashto] can become a productive member of our society, if allowed to remain in this country. The fact that [Dashto] is now the youngest child in his family, ¹ and that his family has supported him in his effort to rehabilitate himself, I believe [he] possesses the unusual and outstanding countervailing equities that would warrant a favorable exercise of discretion.

A. 53-54. The judge deemed it a close question whether Dashto's criminal conduct was so grave that despite the factors weighing in his favor, he should nonetheless be denied discretionary relief--the six offenses to which Dashto had pled guilty were, in the judge's words, "very serious." A. 54. However, the Immigration Judge ultimately was persuaded that relief was appropriate in view of the fact that Dashto had committed no other offenses, that he appeared to demonstrate remorse, and that he had extensive family ties in the United States. A. 54-55.

The INS appealed the judge's ruling, and the Board of Immigration Appeals sustained the appeal. Initially, the Board found the record sufficient to conclude that Dashto had been convicted of a firearms offense. Dashto had pled guilty to a charge of armed robbery, an offense which requires the carrying of a dangerous weapon. 720 ILCS 5/18-2 (Smith-Hurd 1993). Indeed, the indictment underlying the offense in question alleged that Dashto had committed the offense of armed robbery "by use of force and by threatening the imminent use of force while armed with a dangerous weapon." A. 318. Illinois law includes all manner of firearms within the definition of a "dangerous weapon." See 720 ILCS 5/33A-1 (Smith-Hurd 1993). Although the indictment itself did not specify what type of weapon was used, the clerk's certificate plainly identified it as a handgun. A. 315. In the Board's view, this amounted to "clear, unequivocal, and convincing evidence" (see Woodby v. INS, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966)), that Dashto had, in fact, used a handgun in the commission of the armed robbery and thus was deportable under section 241(a)(2)(C). A. 4-5. Relief under section 212(c) was thus unavailable to Dashto. ²

Even if Dashto were eligible for relief under section 212(c), the Board went on, the Immigration Judge erred in granting him that relief. The Board was especially concerned by Dashto's multiple convictions for robbery and armed robbery, acts which Dashto committed to support his use of cocaine. A. 6. The Board also found Dashto's expressed remorse wanting, noting that he described himself to the Immigration Judge as "just a follower" of his accomplices and that he had not sought any sort of counseling for his drug abuse. A. 7. The Board acknowledged a number of factors weighing in Dashto's favor, including his lengthy residence in the United States, his extensive Finally, the Board declined to remand Dashto's case to the Immigration Judge to determine whether he was eligible for an adjustment of status under section 245(a) of the Act. Noting that the discretionary relief permitted under this section was "extraordinary," the Board found that the "[t]he same balancing of factors" which had led it to conclude that Dashto did not merit relief under section 212(c) revealed him to be unworthy of relief under section 245(a). A. 8.

                family ties in this country, and his participation in educational programs while incarcerated.  A. 6. 3  But these were insufficient to overcome the "substantial negative weight" of his criminal activity.  A. 7.  Deportation would be a hardship to both Dashto and his family, the Board agreed, but this hardship was not unusual (no one in his family depended on Dashto for support, for example) and was not sufficient to overcome the factors counseling in favor of deportation.  A. 7
                

II.

Dashto has challenged each aspect of the Board's ruling. We agree with his initial contention that the evidence was insufficient to establish his deportability under section 241(a)(2)(C) for the unlawful use of a firearm. Thus, Dashto was eligible to seek relief under section 212(c). We cannot agree with Dashto, however, that the Board erred in exercising its discretion to deny him relief under section 212(c). Nor do we agree with Dashto's suggestion that the Board improperly exercised its discretion as to his request for an adjustment of status under 245(a). Reasonable people might disagree with the result the Board reached; but we have no basis to conclude that the Board in any way abused its considerable...