Espinoza v. I.N.S., 91-3346

• Decision Date: 22 April 1993
• Docket Number: No. 91-3346,91-3346
• Parties: Manuel ESPINOZA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1294

991 F.2d 1294

Manuel ESPINOZA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 91-3346.

United States Court of Appeals Seventh Circuit.

Argued Oct. 2, 1992.

Decided April 22, 1993.

Robert E. Lehrer, Legal Assistance Foundation of Chicago, Susan Compernolle, Federico J. Guzman, Legal Assistance Foundation, Douglas Schoppert (argued), Coursey & Schoppert, Chicago, IL, for petitioner.

William J. Howard, David J. Kline, William P. Barr, Dept. of Justice, Office of Immigration Litigation, Washington, DC, A.D. Moyer, I.N.S., Chicago, IL, Allen W. Hausman (argued), Office of Immigration Litigation, Civ. Div., Washington, DC, for respondent.

Before POSNER and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

COFFEY, Circuit Judge.

Manuel Espinoza appeals the Board of Immigration Appeals' ("BIA" or "Board") refusal to grant him a discretionary waiver of deportation under 8 U.S.C. § 1182(c). We vacate the decision of the BIA and remand the case to the BIA for further proceedings.

I. BACKGROUND

Espinoza was charged with delivering cocaine on five separate occasions in 1987 and 1988, and was charged with possession of cocaine on two other occasions in 1987 and 1988. On January 23, 1989, Espinoza was convicted of five counts of delivery of cocaine as alleged in the criminal informations and one count of possession of cocaine in violation of Chapter 56 1/2, § 1401 of the Illinois Revised Statutes. Espinoza was sentenced to concurrent eight-year terms at the Logan Correctional Center in Chicago, Illinois for each of his cocaine convictions. Espinoza is a native and citizen of Mexico who entered the United States in 1971 at the age of six, and completed grammar school and attended high school through the tenth grade in the United States. Espinoza testified that he has remained in the United States since 1971, but traveled to Mexico on four or five occasions during 1985-86 and 1988.

On the early morning of March 17, 1984, Espinoza sustained a bullet wound in his spinal cord after intervening in a bar fight; the bullet left him paralyzed from the chest down. Espinoza is confined to a wheelchair and requires assistance to perform simple daily tasks. Espinoza's father, mother, three brothers, and five sisters reside in Chicago, Illinois. According to the record, three of his sisters are citizens of the United States, while his parents and other siblings are permanent residents of this country. Espinoza and his girlfriend, Nicolette Colon, have a son, Gregorio Espinoza, who was born on November 23, 1984 in Chicago, Illinois. Colon testified that she and Gregorio would probably not accompany Espinoza if he were deported to Mexico because she has lived in Chicago since birth and her family and employment ties require that she remain in Chicago to support Gregorio.

Espinoza testified at the deportation hearing that shortly after his incarceration he enrolled in a college degree program offered at the Logan Correctional Institute and received an associate degree in general studies from MacMurray College in March 1991. Espinoza stated that upon release from prison, he intends to pursue a career in accounting. Because he was trained only in the English language, and not in the Spanish language, during his elementary and high school education, Espinoza is of the opinion that his ability to pursue a career in accounting in Mexico would be significantly restricted. Espinoza testified that deportation to Mexico would also interfere with and limit his physical rehabilitation program because the medical services and facilities in the United States are superior to those in Mexico.

On September 22, 1989, the Immigration and Naturalization Service ("INS") issued an Order To Show Cause, alleging that Espinoza was subject to deportation under 8 U.S.C. § 1251(a)(4)(B) and § 1251(a)(11) because of his state court convictions for five counts of delivery of cocaine and one count of possession of cocaine. Espinoza enrolled in the prison's Narcotics Anonymous drug rehabilitation program in November 1990, after the INS had commenced deportation proceedings against him. Espinoza stated that he plans to continue in Logan Correctional Center's drug treatment program until his release from prison. ¹

During his deportation hearing, Espinoza stated that he had applied for a waiver from deportation under § 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c). The Immigration Judge ("IJ") granted Espinoza a § 212(c) waiver after finding that his enrollment in a drug rehabilitation program since November 1990 and his educational efforts in prison demonstrated unusual and outstanding equities warranting such relief. The INS appealed Espinoza's § 212(c) waiver to the BIA. The BIA reversed the IJ's granting of Espinoza's waiver of deportation and ordered him to return to Mexico. Espinoza appeals.

II. STANDARD OF REVIEW

We have jurisdiction to review all final orders of deportation under 8 U.S.C. § 1105a(a), and review the decision of the BIA for an abuse of discretion. Akinyemi v. I.N.S., 969 F.2d 285, 288 (7th Cir.1992). Our review is "limited to whether the [BIA's] discretion was actually exercised and whether it was exercised in an arbitrary or capricious manner." Id.; Cordoba-Chaves v. I.N.S., 946 F.2d 1244, 1246 (7th Cir.1991). We may reverse a discretionary decision of the BIA only if it "was made without a rational explanation, ... inexplicably departed from established policies, or rested on an impermissible basis." Akinyemi, 969 F.2d at 288 (quoting Cordoba-Chaves, 946 F.2d at 1246); see also Bal v. Moyer, 883 F.2d 45, 46 (7th Cir.1989). The BIA must set forth its reasons for denying relief after weighing all of the factors, both favorable and unfavorable, to the petitioner's case. Vergara-Molina v. I.N.S., 956 F.2d 682, 685 (7th Cir.1992); Garcia-Lopez v. I.N.S., 923 F.2d 72, 74 (7th Cir.1991).

III. SECTION 212(c) WAIVER OF DEPORTATION

Section 212(c) of the Immigration and Nationality Act provides in relevant part:

"[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). Section 212(c) of the Act permits the Attorney General (or his delegate, the BIA) to waive the deportation of aliens who have been lawful permanent residents for seven years and whose deportation has been ordered for certain specified reasons, including criminal convictions. See Cordoba-Chaves, 946 F.2d at 1247. However, statutory eligibility does not automatically entitle the alien to a waiver of deportation. Akinyemi, 969 F.2d at 288. The grant of a § 212(c) waiver of deportation is within the discretion of the BIA. Id. In the exercise of discretion, the BIA balances the social and humane considerations in the alien's favor ("positive factors") against any "adverse factors" that demonstrate his or her undesirability as a permanent resident in the United States. See Akinyemi, 969 F.2d at 288; Cordoba-Chaves, 946 F.2d at 1247. Factors that are considered favorable to the alien include:

"[F]amily 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."

Cordoba-Chaves, 946 F.2d at 1247 (citation omitted) (emphasis added). Examples of factors that are adverse to an alien's application for a § 212(c) waiver of deportation 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. One or more of these factors may ultimately be relied upon to determine whether relief under § 212(c) should be granted or denied. Cordoba-Chaves, 946 F.2d at 1247. When the grounds for deportation are based upon the petitioner's criminal activity, a heightened showing of favorable evidence is required to demonstrate unusual or outstanding equities to offset the grounds for petitioner's deportation. See Cordoba-Chaves, 946 F.2d at 1247.

A. Administrative Proceedings

1. The Immigration Judge

The IJ found Espinoza's convictions for trafficking in cocaine to be serious drug offenses, thus requiring that Espinoza establish unusual and outstanding equities in order that he might demonstrate that he is deserving of § 212(c) relief from deportation. The IJ stated there were four factors in Espinoza's favor. Initially, the IJ recognized that at the time of the deportation hearing Espinoza had resided in the United States for approximately twenty years and had been a permanent resident for approximately ten years (1981-1991). ² Second, the IJ considered Espinoza's confinement to a wheelchair to be an important equity, in that his lack of mobility would make it more difficult for him to adapt to life in Mexico. Third, the IJ found Espinoza's close family ties to his parents, eight siblings, and son, all living in the Chicago area, to be an equity in his favor. In addition, the IJ noted that Espinoza's parents and his girlfriend, Nicolette Colon, testified that they would assist Espinoza upon his release from prison. The IJ referred to the testimony of Espinoza's mother concerning how she and her husband have gone to...