Becerra-Jimenez v. I.N.S.

• Decision Date: 22 September 1987
• Docket Number: BECERRA-JIMENE,P,No. 86-2461,86-2461
• Citation: 829 F.2d 996
• Parties: Ramonetitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 996

829 F.2d 996

Ramon BECERRA-JIMENEZ, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 86-2461.

United States Court of Appeals Tenth Circuit.

Sept. 22, 1987.

Philip M. Alterman, Denver, Colo., for petitioner.

Donald E. Keener (Richard K. Willard, Asst. Atty. Gen., Thomas W. Hussey, Asst. Director, Donald E. Keener, with him on brief), Office of Immigration Litigation, Civ. Div., Dept. of Justice, Washington, D.C., for respondent.

Before MOORE, BARRETT and TACHA, Circuit Judges.

BARRETT, Circuit Judge.

Ramon Becerra-Jimenez (Becerra) petitions for review of a decision of an Immigration Judge (IJ), affirmed on appeal by the Board of Immigration Appeals (BIA), finding him deportable under the Immigration and Naturalization Act (Act), 8 U.S.C. Sec. 1251(a)(2), ¹ and denying his request for a grant of voluntary departure under 8 U.S.C. Sec. 1254(e). ² Becerra has also filed a motion requesting that we stay this appeal and remand to the BIA for consideration of a motion which, according to Becerra, may render this appeal moot.

Becerra is a native of Mexico. In 1949, at the age of ten, Becerra entered the United States with his siblings as a lawful permanent resident. Most of Becerra's family currently resides in the United States including his four children, all of whom are United States citizens.

In 1958 Becerra was convicted of burglary and grand larceny and sentenced to nine months in prison. As a result of these convictions, Becerra was stripped of his lawful permanent resident status and deported in 1962. On February 6, 1974, Becerra reentered the United States without valid entry documentation. Thereafter, Becerra was deported a second time on May 21, 1975.

During June, 1975, Becerra reentered the United States by falsely claiming to be a United States citizen. Subsequent thereto, Becerra was tried and convicted of illegal entry and sentenced to six months imprisonment. ³ After serving his prison term, Becerra consented to voluntary deportation.

On November 26, 1976, Becerra again reentered the United States without inspection by falsely claiming to be a United States citizen. This entry is the basis of the present deportation proceedings. On February 17, 1982, Becerra pled guilty to menacing, a class 3 misdemeanor. He served thirty days in prison. As a result of Becerra's prison sentence, his deportation hearing, originally scheduled for February 19, 1982, was continued until April, 1982.

During the April 5, 1982, deportation hearing, Becerra, represented by counsel, requested discretionary relief in the form of a voluntary departure under Sec. 1254(e) in lieu of deportation. After the hearing, the IJ found inter alia: Becerra was statutorily and regulatorily eligible for consideration of voluntary departure in lieu of deportation; the favorable factors in Becerra's case included his length of residence in the United States, his four children, all of whom are United States citizens, and that he has been the sole source of support of the children for the last two years; the adverse factors in Becerra's case included his immigration record and his conviction record. The IJ concluded by finding:

The adverse factors in the case, the deportation, the reentry shortly after the deportation in 1975, the false claim to citizenship, which respondent has testified he made when entering the United States and the conviction record, Exhibit No. 2, I find outweigh the favorable factors of having United States citizen children and the residence in the United States and in the exercise of discretion will deny the application for voluntary departure in lieu of deportation.

Respondent has chosen to be sent to Mexico if ordered deported from the United States.

ORDER: It is ordered that the respondent be deported from the United States to Mexico on the charge in the Order to Show Cause.

R., Vol. I at p. 000010-000011.

On August 20, 1986, the BIA affirmed the decision of the IJ in a per curiam order. Within its order, the BIA concluded:

Deportability has been established by clear, unequivocal, and convincing evidence by the respondent's concessions at the hearing. Based upon the record before us, we agree with the immigration judge that the respondent has failed to sustain his burden of establishing that a grant of voluntary departure is warranted in his case, notwithstanding the equities presented and enumerated by the immigration judge, given his history of criminal law violations and his repeated violations of this country's immigration laws over the years. The appeal is dismissed.

R., Vol. I at p. 000002.

On October 3, 1986, Becerra filed this appeal. Thereafter, on May 11, 1987, and at a time when Becerra's appeal had been set for oral argument, Becerra filed a Motion to Remand this case to the BIA for consideration of his Motion to Reopen/Motion for Continuance filed with the BIA on the same date. In his brief filed in support of his motion to remand, Becerra argued that a remand was necessary so that the BIA could reevaluate his case "in light of several developments which occurred subsequent to the deportation hearing. These developments include the expungement of his criminal record, his father's attaining U.S. citizenship, and his fathering of another U.S. citizen child." (Petitioner's Reply Brief at p. 1.) On the same date, Becerra filed a motion requesting that we stay oral argument until we had acted on his motion for remand. Oral arguments were heard as scheduled.

On appeal, Becerra contends that: (1) he was statutorily eligible for voluntary departure; (2) the decision to deport him was an abuse of discretion which departed from precedents and policies of the INS; (3) the IJ made a serious error of fact; and (4) that the BIA abused its discretion in failing to articulate its basis for affirming the IJ's decision. During oral argument, Becerra, citing Rogue-Carranza v. Immigration and Naturalization Service, 778 F.2d 1373, 1374 (9th Cir.1985), also requested that we stay our mandate and remand the matter to the BIA for such time as may be necessary for the disposition of his motion by the BIA.

I.

Becerra contends that he was statutorily eligible for voluntary departure and that the decision to deport him was an abuse of discretion. Voluntary departure is a privilege. Villanueva-Franco v. INS, 802 F.2d 327, 329 (9th Cir.1986). The granting of the privilege of voluntary departure to an alien in lieu of deportation is a matter of discretion with the attorney general. Vassiliou v. District Director of Immigration and Naturalization Service, 461 F.2d 1193, 1195 (10th Cir.1972); Contreras-Aragon v. INS, 789 F.2d 777, 779 (9th Cir.1986). In reviewing the denial of the discretionary relief of voluntary departure, "we only examine whether the discretion was actually exercised and whether it was exercised in an arbitrary and capricious manner." Parcham v. INS, 769 F.2d 1001, 1003 (4th Cir.1985). Applying these standards to the facts herein, we hold that the denial of voluntary departure to Becerra in lieu of deportation did not constitute an abuse of discretion.

In its order, the IJ initially acknowledged that Becerra "is statutorily and regulatorily eligible in this instance for consideration of voluntary departure in lieu of deportation." (R., Vol. I at p. 000009). The IJ then set forth the adverse factors weighing against voluntary departure in lieu of deportation:

The adverse factors in the case, of course, is the conviction record established by Exhibit No. 2 [menacing, class 3 misdemeanor] which is an adverse factor in the case. Other adverse factors in the case are the Immigration record which the respondent has readily admitted and testified to today. The deportation hearing in 1958 and 1962 will not be given any weight due to the long passage of time and I feel that as respondent was a lawful permanent resident and had been stripped of such permanent residence it would be considered to be more than punishment. However, since 1975 respondent has indicated that he had reentered the United States, was convicted and sent to La Tuna where he served approximately 6 months and subsequently was released and was the subject of a deportation hearing then. Within a week or shortly thereafter after being deported, returned to Mexico, and reentered on the false claim of United States citizenship in November of 1976. I realize that this is outside the five year period, however, I think it is important to consider the same because of the adverse nature as a false claim of United States citizenship, of course, is a felony and is a criminal offense.

R., Vol. I, p. 000010.

The denial of voluntary departure to Becerra in lieu of deportation was neither arbitrary nor capricious. Becerra's prior convictions, earlier deportations, and repeated reentry into the United States by falsely claiming to be a United States citizen strongly support the denial of voluntary departure.

II.

Becerra contends that the IJ made a serious error of fact which led to an improper balancing of unfavorable factors and that the BIA abused its discretion in failing to articulate its basis for affirming the IJ.

A.

Becerra was convicted for illegal entry on August 12, 1976, and thereafter served six months in prison. Upon release, Becerra consented to voluntary departure. Notwithstanding this evidence, Becerra contends that the IJ erroneously found that he (Becerra) was deported after serving his sentence.

While acknowledging that "[i]t is impossible to determine what effect this erroneous finding ... had on his decision to deny Becerra voluntary departure" (Petitioner's Brief on Appeal at p. 10), Becerra contends that the IJ made a serious error of fact which led to an improper balancing of unfavorable factors. We disagree.

Error, if present, was harmless. The deportation referenced by the IJ as an adverse factor occurred in 1975, and not 1976. (R., Vol. I at p. 000011). Furthermore, even assuming that...