Alaelua v. I.N.S., 93-70868

• Decision Date: 30 January 1995
• Docket Number: No. 93-70868,93-70868
• Parties: Lipoi ALAELUA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1379

45 F.3d 1379

Lipoi ALAELUA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 93-70868.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 3, 1994.

Decided Jan. 30, 1995.

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.

FACTS

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 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 further reflects that all would suffer emotional and financial hardship if the respondent were deported. Finally, we note that the respondent appears to have a history of gainful employment, and that [he] only had some four or five years of formal education. We consider his long residence and family ties to be outstanding equities.

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

Contrary to the respondent's assertions, however, we are not persuaded that he would face unusual or unique problems if he is deported to Western Samoa. The record reflects that the respondent is young, healthy, and employable. In addition, the respondent's wife testified that she would return to Western Samoa with him if he is ordered deported. She also has job skills. Moreover, we are not convinced that life in Western Samoa would be unusually harsh or that the respondent or his family would be deprived of any of the necessities [of] life. With respect to the alleged financial hardship to the respondent's parents, we note that many of his siblings reside in the United States and should be able to provide adequate support for the respondent's parents.

Therefore, even considering the outstanding equities which the respondent has been able to establish, we do not find that granting relief is warranted or in the best interests of this country. In reaching this conclusion, we have evaluated the respondent's equities against the serious adverse factors present in his case, which involve the distribution of drugs. While his deportation will undoubtedly involve some hardship to himself and to his wife and children and certainly much unhappiness for the entire family, we are satisfied that the respondent will make the adjustment well. Accordingly, the respondent's application for a waiver will be denied, and the following order will be entered.

On review, the Board of Immigration Appeals (BIA) adopted the decision of the IJ. The BIA did not write its own decision analyzing the relevant factors. In a one paragraph opinion, the BIA said that it had reviewed the record, as well as the IJ's decision. It took special note of how comprehensive and well reasoned the IJ's decision was, and affirmed based on his reasons:

We have reviewed the record of [the] proceedings, the immigration judge's decision, and the contentions of both parties on appeal. As we find that the immigration judge adequately and correctly addressed the issues raised on appeal, his comprehensive and well-reasoned decision is affirmed based upon and for the reasons set forth in that decision.

ANALYSIS

Alaelua petitioned this court for review pursuant to 8 U.S.C. Sec. 1105a. See Tapia-Acuna v. INS, 640 F.2d 223, 223 (9th Cir.1981). We review only for abuse of discretion, not de novo. Vargas v. INS, 831 F.2d 906, 908 (9th Cir.1987). Alaelua argues that the BIA's failure to discuss in its own written decision all favorable factors constitutes an abuse of discretion. He correctly points out that the BIA decision "must show that the BIA weighed both favorable and unfavorable factors," and that the BIA must "state its reasons and show proper consideration of all factors when weighing equities and denying relief." Mattis v. INS, 774 F.2d 965, 968 (9th Cir.1985). But he errs in arguing that an opinion of the BIA fails this standard if it adopts the decision of the IJ instead of discussing the favorable factors in its own words.

The BIA argues that when "the Board explicitly states that it is adopting the reasons and the conclusions of the IJ, and not substituting its judgment for that of the IJ, it is the IJ's opinion that serves as the Board's articulation and is held to the abuse of discretion standard," citing Yepes-Prado v. INS, 10 F.3d 1363, 1367 (9th Cir.1993). The argument is correct, but the citation is not dispositive. We publish today to make it clear that the BIA can adopt the IJ's...