Diaz-Resendez v. I.N.S.

• Decision Date: 12 May 1992
• Docket Number: No. 90-4792,P,DIAZ-RESENDE,90-4792
• Citation: 960 F.2d 493
• Parties: Benedictoretitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 493

960 F.2d 493

Benedictor DIAZ-RESENDEZ, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 90-4792.

United States Court of Appeals Fifth Circuit.

May 12, 1992.

Lisa S. Brodyaga, Harlingen, Tex., for petitioner.

Richard Thornburgh, Atty. Gen., Philemina M. Jones, Alice M. King, Mark C. Walters, Robert Kendall, Jr., Robert L. Bombough, Dir., Office of Immigration Lit., Civ. Div., U.S. Dept. of Justice, Washington, D.C., for respondent.

Omer G. Sewell, Dist. Dir., Harlingen, Tex., John B.Z. Caplinger, Dist. Dir., New Orleans, La., for other interested parties.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before POLITZ, Chief Judge, HIGGINBOTHAM, Circuit Judge, and WINGATE, ^* District Judge.

POLITZ, Chief Judge:

Benedictor Diaz-Resendez petitions for review of an order of the Board of Immigration Appeals denying discretionary relief from deportation under 8 U.S.C. § 1182(c). Concluding that the Board's decision is arbitrary and beyond the pale of its discretion we grant review, vacate and remand.

Background

Diaz-Resendez was admitted to the United States as a lawful resident when he was 17 years old. He has been in continuous lawful-resident status for 37 years, has been married to a United States citizen for 29 years, and they are the parents of six children, all born in the United States. Two of the children are adults and are married, living on their own in Roma, Texas where the family resides. Four of the children still reside in the home, one of whom has special education needs as a result of a head injury sustained in a bicycle accident. That child attends private night school. A second child is attending public high school and the third is taking GED courses. The fourth child is currently employed. Diaz-Resendez is the primary source of income for his family and has a consistent history of employment. His earnings have averaged around $5000 a year from his various work as a carpenter, construction worker, and field worker. The exception is one year in which his earnings were only $375, a time when Diaz-Resendez was forced to apply for assistance in the form of food stamps. The health of this 54-year-old is reasonably good although he receives treatment for a prostate problem. His wife, however, has a progressive and incurable medical condition causing spinal column disintegration.

A disastrous event occurred in the life of Diaz-Resendez on October 28, 1985 when the INS arrested him at a checkpoint and approximately 21 pounds of marihuana was found secreted in the car he was driving. Diaz-Resendez pled guilty to possession of marihuana with intent to distribute. He explained that he did this criminal act because of desperation caused by the economic straits he had encountered and his inability to provide for his family, something he had done with pride all of his married life. He was sentenced to imprisonment for three years followed by a special parole term of five years. Of particular note, and of substantial significance, the very experienced trial judge suspended all but four months of the jail sentence. The only other brush with the law Diaz-Resendez had during his 37 years of lawful permanent residence in the United States was a DWI charge in 1983, immediately following which he quit drinking alcoholic beverages.

Deportation proceedings were triggered by the drug offense. Pleading that he would never be involved in such conduct again, Diaz-Resendez conceded that he was deportable under 8 U.S.C. § 1251(a)(11), which calls for the deportation of persons who violate our drug laws, but requested, based on all of the relevant circumstances, that he be granted a waiver of deportation under 8 U.S.C. § 1182(c). ¹

A deportation hearing was conducted by an Immigration Judge. Diaz-Resendez testified, as did his wife who stated, inter alia, that she and the children would not move to Mexico and that the deportation of her husband would result in a separation of their close-knit family. In addition, documentary evidence was introduced in an effort to buttress the claim that Diaz-Resendez was entitled to relief under section 212(c). That evidence included proof of employment and earnings, a favorable letter from the probation officer, and letters of recommendation urging favorable consideration of his petition. The IJ denied relief and ordered deportation to Mexico. Diaz-Resendez appealed to the Board which refused relief. He timely petitioned this court for review of the Board's decision.

Standard of Review

A permanent resident alien requesting discretionary relief from deportation under section 212(c) bears the burden of demonstrating that his application merits favorable consideration. Blackwood v. INS, 803 F.2d 1165 (11th Cir.1986). Neither the statute nor applicable regulation contain provisions specifying the circumstances under which such discretion should be exercised. See 8 U.S.C. § 1182(c); 8 C.F.R. § 213.3 (1990). Typically, deference is given to the Board's interpretation of the Act unless there are persuasive indicators that the Board erred. Zamora-Morel v. INS, 905 F.2d 833, 838 n. 2 (5th Cir.1990).

The Board's denial of an applicant's petition for relief under section 212(c) is reviewed for abuse of discretion. Foti v. INS, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963); Bal v. Moyer, 883 F.2d 45 (7th Cir.1989). Such denial will be upheld unless it is arbitrary, irrational, or contrary to law. Zamora-Morel, 905 F.2d at 838; Blackwood, 803 F.2d at 1168; Daniel v. INS, 528 F.2d 1278 (5th Cir.1976). When determining whether the Board's action was arbitrary, irrational, or not in accordance with the law, we "engage in a substantial inquiry, ... a thorough, probing, in-depth review of [the] discretionary agency action." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136, 153 (1971); Acadian Gas Pipeline System v. FERC, 878 F.2d 865 (5th Cir.1989) (reviewing court does not rubberstamp agency decisions; instead, review must be searching and careful).

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. Martinez-Montoya v. INS, 904 F.2d 1018 (5th Cir.1990) (reversing Legalization Appeal Unit order because a deferred adjudication under Texas law was not a "conviction" under BIA precedent); Graphic Communications Int. Union, Local 554 v. Salem-Gravure Div. of World Color Press, Inc., 843 F.2d 1490, 1493 (D.C.Cir.1988) cert. denied sub nom. World Color Press, Inc. v. Dole, 489 U.S. 1011, 109 S.Ct. 1119, 103 L.Ed.2d 182 (1989) ("Agency decisions that depart from established precedent without a reasoned explanation will be vacated as arbitrary and capricious."). Further, a decision by the Board may be found arbitrary if the Board fails to address meaningfully all material factors extant. Luciano-Vincente v. INS, 786 F.2d 706 (5th Cir.1986) (the Board's failure to consider a pertinent factor constitutes abuse of discretion); Mattis v. INS, 774 F.2d 965 (9th Cir.1985) (BIA discretionary denials must demonstrate that the BIA weighed both favorable and unfavorable factors) (citing De La Luz v. INS, 713 F.2d 545 (9th Cir.1983)); Zamora-Garcia v. INS, 737 F.2d 488, 490-91 (5th Cir.1984) (INS must "actually consider" the facts, "meaningfully address" each claim of hardship, and give "reasons for denying relief that reflect full consideration of the evidence.") (citing Ramos v. INS, 695 F.2d 181 (5th Cir.1983)).

Findings of fact supporting the Board's exercise of discretion, however, are reviewed merely to determine whether they are supported by substantial evidence. Zamora-Morel, 905 F.2d at 838 (citing Young v. INS, 759 F.2d 450, 455-56 n. 6 (5th Cir.), cert. denied, 474 U.S. 996, 106 S.Ct. 412, 88 L.Ed.2d 362 (1985)).

Applicable Law

In Matter of Marin, 16 I & N Dec. 581 (BIA 1978), the Board established a balancing test for determining whether an alien seeking relief under section 212(c) merits a favorable exercise of discretion.

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.

Id. at 584.

The Board also explained that "[a]s the negative factors grow more serious, it becomes incumbent upon the applicant to introduce additional offsetting favorable evidence, which in some cases may involve unusual or outstanding equities." Id. at 585. Applicants for discretionary relief who have been convicted of serious drug offenses must show "unusual or outstanding equities." Id. at 586 n. 4; Matter of Edwards, Interim Decision 3134 (BIA May 2, 1990); Matter of Buscemi, Interim Decision 3058 ...