Ghassan v. I.N.S., s. 91-4664

• Decision Date: 08 September 1992
• Docket Number: Nos. 91-4664,92-4177,s. 91-4664
• Citation: 972 F.2d 631
• Parties: Ibrahim Fez GHASSAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 631

972 F.2d 631

Ibrahim Fez GHASSAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 91-4664, 92-4177.

United States Court of Appeals, Fifth Circuit.

Sept. 8, 1992.

Rehearing and Rehearing En Banc Denied Oct. 8, 1992.

Thomas P. Adams, David A. Kattan, New Orleans, La., for Ibrahim Fez Ghassan.

Richard Thornburgh, Atty. Gen., Dept. of Justice, Anthony W. Norwood, Alice M. King, Donald A. Couvillon, Richard M. Evans, Asst. Dir., Donald E. Keener, Robert L. Bombough, Dir., Office of Immigration Lit., Civ. Div., Washington, D.C., for INS, in No. 91-4664.

William Barr, Atty. Gen., Dept. of Justice, Anthony W. Norwood, Richard M. Evans, Asst. Dir., Donald A. Couvillon, Donald E. Keener, Robert L. Bombough, Dir., Office of Immigration Lit., Civ. Div., Washington, D.C., for INS, in No. 92-4177.

Tom Fischer, INS Dist. Dir., Atlanta, Ga., John B.Z. Caplinger, INS Dist. Dir., New Orleans, La., for other interested parties.

Petitions for Review of Orders of the Immigration and Naturalization Service.

Before WISDOM, SMITH, and EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Ibrahim Fez Ghassan, a native and citizen of Lebanon who was a permanent resident of the United States, was convicted of conspiracy to import and distribute heroin. After he was released from prison, the Immigration and Naturalization Service ("INS") began deportation proceedings. An immigration judge ("IJ") denied his application for waiver of deportation, and the Board of Immigration Appeals ("BIA") affirmed that denial and denied Ghassan's motions to reconsider or reopen. Ghassan petitions for review of the BIA's decisions. Finding that the decisions were within the BIA's discretion, we deny the petitions.

I.

Ghassan first came to the United States in 1978 at the age of seventeen to attend college in Minnesota. In 1980 he began dating Donna Owings, a United States citizen and resident of Minnesota. This relationship ended in 1982 when Owings moved to North Carolina with her parents.

In 1981 Ghassan gained permanent resident alien status. In 1983 he and several other Lebanese citizens, including his brother, began a scheme to import and distribute heroin. The following year, Ghassan pleaded guilty to an indictment charging him with conspiracy to import and distribute heroin; he was sentenced to eight years in prison and a $25,000 fine.

While Ghassan served his sentence, Owings contacted him and they began corresponding. She was married and had a son but was separated from her husband because he had abused her. Ghassan was released from prison in 1989 into the custody of the INS, which initiated deportation proceedings in Louisiana in March 1989, pursuant to 8 U.S.C. § 1251(a)(11). ¹ Ghassan and Owings, who had divorced her first husband, were married in September 1989, at which time Owings knew that Ghassan was liable to be deported.

Ghassan was charged with deportability because of his heroin conspiracy conviction. He admitted the conviction, and the IJ found him to be deportable. Ghassan declared that he would apply for a waiver of deportation and for asylum; the application for asylum later was withdrawn.

In March 1990, the IJ held a hearing on the merits of the waiver application and then denied the application. Ghassan appealed this decision to the BIA, which received briefs and heard oral argument. The BIA denied the waiver application on July 12, 1991. Ghassan then filed a petition for review with this court.

While that petition was pending, Ghassan filed with the BIA a motion to reopen the deportation proceedings and a motion to reconsider its decision. The BIA denied both motions. Ghassan then sought our review of the denial of those motions. The petitions have been consolidated in this case.

II.

Section 212(c) of the Immigration and Naturalization Act ² allows the Attorney General to waive deportation of eligible permanent resident aliens, including those convicted of controlled substances offenses. To be eligible for waiver, an alien must have been in legal permanent residence for at least seven years. The INS does not dispute that Ghassan was eligible to apply for the waiver.

We recently explained the BIA's balancing test for considering applications under section 212(c):

The immigration judge must balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of section 212(c) relief appears in the best interests of this country.... Among the factors deemed adverse to a respondent's application have been the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country's immigration laws, the existence of a criminal record, and if so, its nature, recency, and seriousness, and the presence of other evidence indicative of a respondent's bad character or undesirability as a permanent resident of this country.... Favorable considerations have been found to include such factors as family ties within the United States, residence of long duration in this country (particularly when the inception of residence occurred while the respondent was of young age), evidence of hardship to the respondent and family if deportation occurs, service in this country's armed forces, a history of employment, the existence of property or business ties, evidence of value and service to the community, proof of a genuine rehabilitation if a criminal record exists, and other evidence attesting to a respondent's good character.

Diaz-Resendez v. INS, 960 F.2d 493, 495-96 (5th Cir.1992) (quoting In re Marin, 16 I & N Dec. 581, 584 (BIA 1978)). We also stated that "[a]pplicants for discretionary relief who have been convicted of serious drug offenses must show 'unusual or outstanding equities' " and that "an applicant with a criminal record will ordinarily be required to make a showing of rehabilitation." Id. at 496.

The IJ found that Ghassan had established rehabilitation but that the hardship Ghassan's wife faced was diminished because she had entered into the marriage with knowledge that he might be deported. The IJ also reasoned that Ghassan's length of residence was undercut by the fact that he had been a permanent resident alien for only one year more than the minimum required for eligibility under section 212(c). Finally, the IJ found it significant that he had served four and one-half years of his prison sentence, stating that such a duration was two years longer than normal.

On administrative appeal, the BIA ruled that the IJ had erred in attributing any significance to the length of Ghassan's incarceration. The BIA then considered the factors weighing in favor of granting waiver to Ghassan, most notably the extent to which his wife and her son depended upon him and the hardship they would suffer if he were deported, which would be exacerbated by the fact that United States law would prevent them from traveling to Lebanon with him. The BIA agreed with the IJ, however, that the wife's hardship was lessened by her prior knowledge of possible deportation.

The BIA also disagreed with the IJ's conclusion regarding rehabilitation, stating that it was "unconvinced" of Ghassan's rehabilitation. Finally, the BIA stressed the gravity of drug offenses under our immigration laws. After balancing the factors, the BIA dismissed the appeal.

III.

Although Ghassan questions the standard of review we apply to BIA decisions on section 212(c) applications, we recently made plain that we look for abuse of discretion. In Diaz-Resendez, decided after the briefs were submitted in the instant case, we stated The Board's denial of an applicant's petition for relief under section 212(c) is reviewed for abuse of discretion. Such denial will be upheld unless it is arbitrary, irrational, or contrary to law....

Under this standard, the Board's decision may be reversed as an abuse of discretion when it is made without rational explanation, or inexplicably departs from established policies. Further, a decision by the Board may be found arbitrary if the Board fails to address meaningfully all material factors extant.

Findings of fact supporting the Board's exercise of discretion, however, are reviewed merely to determine whether they are supported by substantial evidence.

Id. at 495 (citations omitted).

Ghassan argues that the BIA considered an irrelevant factor when it stated that his wife's hardship was diminished by the fact that she had entered the marriage with knowledge of his possible deportation. We disagree. The factors the BIA considers are equities, matters of fairness. Considering his wife's previous knowledge seems eminently equitable. See In re Correa, 19 I & N Dec. 130, 134 (BIA 1984) (discounting equities arising after a final order of deportation). ³

Ghassan also argues that the BIA failed to consider all of the relevant evidence. Our examination of the BIA's opinion shows, however, that to the extent it can consider evidence presented for the first time on appeal, the BIA did consider all of Ghassan's evidence--it just did not find it compelling.

Finally, Ghassan argues that the BIA erred in finding that he was not rehabilitated. His challenge has two prongs: First, he argues that the BIA should not have disregarded the IJ's finding, because the INS did not challenge that finding in its brief. ⁴ We disagree.

Unlike the circuit courts of appeals, the BIA is not a court of error. ⁵ See e.g., Cordoba-Chaves v. INS, 946 F.2d 1244, 1249 (7th Cir.1991); DeLucia v. INS, 370 F.2d 305, 308 (7th Cir.1966), cert. denied, 386 U.S. 912, 87 S.Ct. 861, 17 L.Ed.2d 784 (1967). The BIA reviews the record de novo and is not bound by the IJ's findings. Castillo-Rodriguez v. INS, 929 F.2d 181, 183 (5th Cir.1991); Rivera v. INS, 810 F.2d 540, 541 (5th Cir.1987); In re Lok, 18 I & N Dec. 101, 106 (BIA 1981), aff'd on...