Guillen-Garcia v. I.N.S.

• Decision Date: 16 August 1995
• Docket Number: GUILLEN-GARCI,No. 94-2559,P,94-2559
• Citation: 60 F.3d 340
• Parties: Luisetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 340

60 F.3d 340

Luis GUILLEN-GARCIA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 94-2559.

United States Court of Appeals Seventh Circuit.

Argued March 30, 1995.

Decided July 17, 1995.

Rehearing and Suggestion for Rehearing

En Banc Denied

Aug. 16, 1995.

Elpidio Villarreal, John C. Koski (argued), Sonnenschein, Nath & Rosenthal, Chicago, IL, for petitioner.

Lauri S. Filppu, Dept. of Justice, Office of Immigration Litigation, Washington, DC, A.D. Moyer, Samuel Der-Yeghiayan, I.N.S., James B. Burns, Office of U.S. Atty., Chicago, IL, William J. Howard, Robert Kendall, Jr., David M. McConnell, Calvin M. Lederer (argued), U.S. Dept. of Justice, Civ. Div. Immigration Litigation; Washington, DC, for respondent.

Before FLAUM, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

Luis Guillen-Garcia has been denied a discretionary waiver of deportation by the Board of Immigration Appeals ("Board" or "BIA"). He seeks review of that decision before this court. This case is before us for the second time. In our previous review, we determined that the Board had failed to consider adequately "all the circumstances surrounding Mr. Guillen's efforts to demonstrate rehabilitation." Guillen-Garcia v. INS, 999 F.2d 199, 205 (7th Cir.1993). We remanded the case with the direction that the BIA assess the matter of rehabilitation on the basis of all the relevant evidence. On remand, the BIA again denied Mr. Guillen's application for a waiver of his deportation and ordered him deported. Mr. Guillen, claiming that the Board refused to consider all the evidence, petitions this court once more to review and to overturn the BIA decision. For the reasons explained in the following opinion, we affirm the decision of the BIA.

I BACKGROUND

Mr. Guillen is a native of Mexico who has resided in the United States since the age of fourteen as a lawful permanent resident. He is married to a United States citizen and has five children, all of whom are United States citizens. As we explained in detail in our earlier opinion, see 999 F.2d at 201-02, Mr. Guillen was convicted, on two occasions, of serious criminal offenses involving the use of a gun. First, following an indictment, which included the charge of attempted murder, Mr. Guillen pled guilty in 1974 to three counts of aggravated battery and received a five-year probationary sentence. While still on probation, he was arrested for attempted murder; he was tried, convicted, and sentenced to ten years of imprisonment. Mr. Guillen satisfactorily served his sentence and parole and was discharged from supervision in 1989.

In 1984, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause charging him with deportability under section 241(a)(4) of the Immigration and Nationality Act ("Act"), 8 U.S.C. Sec. 1251(a)(4) (1988), as an alien convicted after entry of two crimes involving moral turpitude. ¹ Mr. Guillen conceded deportability, but requested a waiver of inadmissibility. He applied for discretionary relief under section 212(c) of the Act. ² Mr. Guillen based his request for After reviewing the Board's decision, we remanded the case to the BIA. ⁴ 999 F.2d at 205. We noted that rehabilitation is an important factor in the decision to grant section 212(c) relief and that, ordinarily, it is a factor that must be established before relief can be granted. We also recognized, however, that it is not an absolute prerequisite to relief. Similarly, we noted that, in determining whether an applicant is rehabilitated, acknowledgement of culpability is an important, although not an exclusive, factor to consider. We directed the Board to reconsider and to clarify its determination that Mr. Guillen had not been rehabilitated. "This determination must be made on the basis of all relevant evidence, not merely his refusal to admit guilt." Id. Nonetheless, we recognized that this court does not "have authority to determine the weight that the BIA should afford to the factors in favor of granting a section 212(c) petition." Id.

                relief on his rehabilitation (earning diplomas in welding and auto mechanics, studying the Bible during his time in prison;  working hard and consistently to provide for his family and continuing Bible study since his release from prison), his close family ties, and his innocence of the crimes for which he had been convicted. 3  See 999 F.2d at 201-02.   The immigration judge found that Mr. Guillen was deportable, but granted his request for a section 212(c) waiver of inadmissibility on the basis that the positive factors associated with his application, including credible evidence of rehabilitation, out-weighed the negative factors.  Nevertheless, the BIA overturned the immigration judge's ruling and denied the waiver application.  It concluded that the petitioner's refusal to acknowledge guilt for his crimes was a clear indication that he was not rehabilitated.  Mr. Guillen then sought our review of the BIA decision
                

On remand the Board reconsidered its earlier decision. See BIA Order of June 17, 1994, Admin.R. at 2. Concerning its method for assessing whether a showing of rehabilitation was present, the BIA explained that it had relied solely on the evidence presented during the course of the proceedings, and necessarily had made a "judgment call" in predicting the petitioner's future conduct. Admin.R. at 3 (quoting Guillen-Garcia, 999 F.2d at 205). The BIA also stated that it did not intend to treat the acknowledgment of culpability as the only relevant factor to be used in determining whether an alien ought to be granted discretionary relief. Nevertheless, the BIA stressed, "the admission of guilt can be an important step to a positive showing of reformation." Id. The Board then evaluated Mr. Guillen's rehabilitation:

In the present case, we assess the respondent's continued employment, his statements regarding deep family concerns, compliance with his probation requirements, his classes while imprisoned, and his refusal to acknowledge guilt for his 1974 conviction for two counts of aggravated battery and his 1984 conviction for attempted murder. When we add the respondent's denial of culpability for the two counts forming his conviction in 1974 and his denial of culpability for his conviction in 1984, these denials undermine the evidence of reformation proffered by him; i.e., his statements regarding deep family concerns, his compliance with his probation requirements, his conduct while confined Admin.R. at 3-4 (emphasis added). The Board concluded that rehabilitation could not be considered a favorable factor for Mr. Guillen because he did not present sufficient evidence of rehabilitation. The Board then "weigh[ed] the outstanding equities[,] as discussed in our original decision and incorporated here, against the adverse factors." Order at 3. On that basis, the Board denied Mr. Guillen's application for waiver of inadmissibility:

including the classes he took, and his continued employment. While the passage of 6 years has occurred between the date of his release from confinement after his last conviction and the last occasion in which the respondent has provided evidence to us (his April 1992 motion to supplement the record), the crucible of time is not overly significant in this particular case since more than 6 years passed between the dates of the commission of the respondent's criminal offenses. As the respondent testified, he had not completed his probation for his aggravated battery offenses when he was arrested for his attempted murder offense (Tr. at 21-22). Taking these factors together, we conclude that the respondent has not demonstrated reliable evidence of his rehabilitation such that we would consider rehabilitation as an additional equity in his favor.

In the exercise of our discretion, we conclude that the very serious nature of the respondent's convictions, particularly his conviction for attempted murder[,] outweigh the equities presented by him such that it is not in the best interest of this country to grant the respondent's application for a waiver of inadmissibility under section 212(c) of the Act.

Admin.R. at 4. The petitioner then timely appealed the BIA determination to this court.

II DISCUSSION

Mr. Guillen submits that the BIA abused its discretion in two ways. We shall address each in turn.

A.

Mr. Guillen first asserts that the Board's decision on remand failed to abide by this court's direction that Mr. Guillen's rehabilitation be assessed "on the basis of all relevant evidence, not merely his refusal to admit guilt." 999 F.2d at 205. He characterizes the Board's response to our mandate as a cursory three-page decision that lacks careful deliberation concerning Mr. Guillen's efforts toward rehabilitation or serious consideration of this court's ruling. It failed to mention, he contends, the immigration judge's findings concerning Mr. Guillen's sincere demeanor and his conclusion that Mr. Guillen was rehabilitated. The petitioner submits that the evidence of record shows that he clearly is a man who has been rehabilitated and is entitled to relief from deportation. He submits that he has admitted that he was convicted of two criminal offenses, has accepted his punishment, and has conceded deportability based on those convictions. Therefore, he continues, the only negative factor in the Board's rehabilitation determination is his failure to admit his guilt of the crimes for which he was convicted. According to Mr. Guillen, his belief in his own innocence in no way undermines the overwhelming evidence of reformation that he proffered to the immigration judge. In Mr. Guillen's view, therefore, the BIA improperly continued to consider his assertion of innocence as the exclusive relevant factor in its analysis of rehabilitation. The Board's failure to consider and to address in a meaningful way all of the factors regarding rehabilitation, in direct contravention to this court's...