Cordoba-Chaves v. I.N.S.

• Decision Date: 22 October 1991
• Docket Number: P,No. 91-1339,CORDOBA-CHAVE,91-1339
• Parties: Williametitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1244

946 F.2d 1244

William CORDOBA-CHAVES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 91-1339.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 2, 1991.

Decided Oct. 22, 1991.

Donald Kempster (argued), Thomas J. Dimitroff, Kempster & Associates, Chicago, Ill., for petitioner.

Fred Foreman, U.S. Atty., Office of the U.S. Atty., Crim. Div., Chicago, Ill., Richard M. Evans, Alison R. Drucker, Lori L. Scialabba, David J. Kline, Dept. of Justice, Office of Immigration Litigation, Richard L. Thornburg, U.S. Atty. Gen., Office of the U.S. Atty. Gen., Washington, D.C., A.D. Moyer, I.N.S., Chicago, Ill., Marshall T. Golding (argued), Office of Immigration Litigation, Civ. Div., Washington, D.C., for respondent.

Before BAUER, Chief Judge, CUMMINGS and WOOD, Jr., Circuit Judges.

CUMMINGS, Circuit Judge.

This is an appeal from a decision of the Board of Immigration Appeals ("BIA"), in which the BIA denied the request of William Cordoba-Chaves for discretionary relief pursuant to section 212(c) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1182(c), and ordered him deported to Colombia. We affirm the BIA's decision.

BACKGROUND

William Cordoba-Chaves is a native and citizen of Colombia. He entered the United States on March 16, 1966 at the age of five as a lawful permanent resident. His mother, father, three brothers, and one sister, who are naturalized United States citizens, all live in the Chicago area. He is married Cordoba-Chaves was convicted of one count of possession of cannabis in 1983 and one count of delivery of cannabis in 1984. On March 14, 1985, he was convicted of murder and aggravated battery, for which he was sentenced to imprisonment of twenty-five years and five years respectively, to be served concurrently.

to a United States citizen and has a United States citizen son.

On April 8, 1986, the Immigration and Naturalization Service ("Service") issued Cordoba-Chaves an Order to Show Cause, alleging: 1) a violation of section 241(a)(11) of the Act on the basis of the state court conviction for delivery of cannabis; and 2) a violation of section 241(a)(4) on the basis of the state court convictions for murder and aggravated battery, two crimes involving moral turpitude. ¹ At the deportation hearing, Cordoba-Chaves admitted the allegations but denied deportability. Cordoba-Chaves contended that the murder and aggravated battery arose out of a single scheme of misconduct which would not render him deportable. ² The Immigration Judge ("IJ") found Cordoba-Chaves deportable on both grounds. ³ Cordoba-Chaves then applied for relief from deportation under section 212(c) of the Act. After a hearing on the merits of the application for section 212(c) relief, in the exercise of discretion the IJ granted the application.

The Service appealed the grant of relief under section 212(c), and Cordoba-Chaves appealed the IJ's finding that he was deportable under section 241(a)(4). The BIA agreed with the IJ that Cordoba-Chaves was deportable under section 241(a)(11), but held that the section 241(a)(4) ground for deportation had not been established. However, the BIA also found that the discretionary grant of relief under section 212(c) was not warranted and ordered Cordoba-Chaves deported to Colombia. On appeal, Cordoba-Chaves argues that: 1) the BIA's decision to deny relief was not supported by reasonable, substantial, and probative evidence; and 2) the BIA abused its discretion by failing to consider all of the relevant factors that were present.

STANDARD OF REVIEW

An appellate court has jurisdiction to review all final orders of deportation. 8 U.S.C. § 1105a(a). "We review the decision of the BIA, not the IJ." Balazoski v. INS, 932 F.2d 638, 640 (7th Cir.1991). Discretionary denials are reviewed for an abuse of discretion and are "limited to whether the discretion was actually exercised and whether it was exercised in an arbitrary or capricious manner." Garcia-Lopez v. INS, 923 F.2d 72, 74 (7th Cir.1991). After weighing all of the factors, both favorable and unfavorable, the BIA must state its reasons for denying relief. Id. A court of appeals does not have the authority to determine the weight to afford to each factor. Id. This court will uphold a denial by the BIA unless it was made without a rational explanation, it inexplicably departed from established policies, or it rested on an impermissible basis, e.g., invidious discrimination against a particular race or group. Bal v. Moyer, 883 F.2d 45, 46 (7th Cir.1989).

SECTION 212(c)

Section 212(c) of the Act provides that "[a]liens lawfully admitted for permanent resident [sic] who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to [certain specified grounds of exclusion]."

                8 U.S.C. § 1182(c).   The statute has also been interpreted to apply to lawful permanent residents who have not left the United States but meet the seven-year requirement and face deportation.  Variamparambil v. INS, 831 F.2d 1362, 1364 n. 1 (7th Cir.1987) (citing Matter of Silva, 16 I & N Dec. 26 (BIA 1976)).   However, statutory eligibility does not automatically provide for an indiscriminate waiver of deportation.   Matter of Buscemi, 19 I & N Dec. 628, 633 (BIA 1988).   Rather, whether an alien merits relief under section 212(c) must be determined by the Attorney General (or his delegate) as a matter of discretion, with the alien bearing "the burden of demonstrating that his application warrants favorable consideration."   Matter of Marin, 16 I & N Dec. 581, 583 (BIA 1978)
                

In exercising his discretion, the Attorney General balances the social and humane considerations in the alien's favor against any adverse factors that demonstrate his undesirability as a permanent resident in the United States. Matter of Edwards, Interim Decision 3134 at 6 (BIA 1990). The BIA has identified both favorable and adverse factors to consider in determining whether to grant a waiver of deportation. Factors favorable to the alien include:

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.

Marin, 16 I & N Dec. at 584-85. Examples of factors that are adverse to an alien's application for discretionary relief under section 212(c) are: 1) the nature and underlying circumstances of the exclusion ground at issue; 2) any additional significant violations of this country's immigration laws; 3) the nature, recency, and seriousness of a criminal record; and 4) any other evidence of an alien's bad character or undesirability as a permanent resident. Id. at 584. One or more of these adverse factors may ultimately be determinative of whether relief under section 212(c) will be granted or denied. Edwards, Interim Decision 3134 at 6.

More serious negative factors require a heightened showing of favorable evidence, which may even have to involve unusual or outstanding equities. Buscemi, 19 I & N Dec. at 633; see also Edwards, Interim Decision 3134 at 7 n. 3 ("a proper determination as to whether an alien has demonstrated unusual or outstanding equities can only be made after a complete review of the favorable factors in his case"). However, a demonstration of outstanding favorable factors does not compel relief, "rather, absent such equities, relief will not be granted in the exercise of discretion." Edwards, Interim Decision 3134 at 7 (where the adverse factors are very serious, a favorable exercise of discretion may not be warranted even though the equities are outstanding). When the ground for exclusion is criminal activity, the Attorney General must examine the gravity of the criminal activity, whether it be a single serious crime or a succession of criminal acts that establish a pattern of serious criminal misconduct. Id. Moreover, when an alien with a criminal record requests relief under section 212(c), "rehabilitation [is] a factor to be considered in the exercise of discretion." Id. at 8.

ADMINISTRATIVE PROCEEDINGS

The IJ found that in Cordoba-Chaves' case, the crimes of murder and aggravated battery were particularly heinous. Consequently, Cordoba-Chaves had to establish unusual or outstanding equities to offset the serious crimes of which he had been convicted. The IJ found that Cordoba-Chaves had a number of factors in his favor. First, at the time of the hearing, Cordoba-Chaves had been a permanent resident for almost 24 years, having arrived in this country at the age of five. Second, he has important family ties in this country and an unusually strong support system.

                The IJ heard testimony from his father, mother, brother, sister-in-law, and pastor, who stated that they believe that he has changed since the commission of the crimes and who testified to their willingness to help him once he is released from prison.   Moreover, the IJ remarked that even though his marriage appears to be strained, the fact that Cordoba-Chaves has a United States citizen wife and child could not be lightly dismissed.   Finally, the IJ found that Cordoba-Chaves had made an affirmative showing of rehabilitation.   In particular, the IJ noted that in prison Cordoba-Chaves had favorable progress reports and had engaged in training in computers and as a barber, that his family members testified that his life turned around while he was in prison, and that the sentencing judge for the murder and aggravated

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