Gonzalez v. I.N.S., 92-3555
| Decision Date | 10 June 1993 |
| Docket Number | No. 92-3555,92-3555 |
| Citation | 996 F.2d 804 |
| Parties | Carmen Miranda de GONZALEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Steve Blanton (argued and briefed), Cent. Kentucky Legal Services, Lexington, KY, for petitioner.
Nicholas J. Pantel, Asst. U.S. Atty., Office of the U.S. Atty., Cincinnati, OH, Robert Kendall, Jr., Emily A. Radford (argued and briefed), U.S. Dept. of Justice, Immigration Litigation, Civ. Div., Washington, DC, Nora K. Duncan, Office of I.N.S., Oakdale, LA and Barbara L. Beran, Office of the U.S. Atty., Columbus, OH, for respondent.
Before: JONES and GUY, Circuit Judges; and COHN, District Judge. *
This is an immigration appeal. Petitioner, Carmen Miranda de Gonzalez (Gonzalez), proceeding in forma pauperis, appeals the denial by the Board of Immigration Appeals (BIA) of her request for relief from deportation. For the reasons that follow, the BIA will be affirmed.
Gonzalez was admitted into the United States as an immigrant on May 27, 1981 at age twenty six. On October 18, 1990, Gonzalez was convicted of: (1) conspiracy to possess with intent to distribute 500 grams or more of cocaine; and (2) possession with intent to distribute approximately 2 kilograms of cocaine. Also on October 18, 1990, the Immigration and Naturalization Service (INS) initiated deportation proceedings against Gonzalez, charging that she was deportable under 8 U.S.C. § 1251(a)(2)(A)(iii) (aggravated felony) and 8 U.S.C. § 1251(a)(2)(B)(i) (controlled substances). 1 At the deportation hearing before an immigration judge (IJ), Gonzalez conceded deportability under those sections and she requested a discretionary waiver of deportation as permitted under section 212(c). 8 U.S.C. § 1182(c). On November 20, 1991, the IJ found that Gonzalez was deportable as charged, denied the request for section 212(c) relief, and ordered Gonzalez deported to Mexico. Gonzalez appealed to the BIA. On May 11, 1992, the BIA issued an opinion dismissing the appeal finding that the IJ did not err in deciding that Gonzalez had not established rehabilitation. This appeal followed.
Gonzalez asserts that the BIA abused its discretion in denying the application for relief under section 212(c). 8 U.S.C. 1182(c). Section 212 provides, in relevant part:
(a) Classes of excludable aliens
Except as otherwise provided in this chapter, the following describes classes of excludable aliens who are ineligible to receive visas and who shall be excluded from admission to the United States:
is excludable.
* * * * * *
(c) Nonapplicability of subsection (a)
Aliens lawfully admitted for permanent resident 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 the provisions of subsection (a) of this section (other than paragraphs (3) and (9)(C)). Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 1181(b) of this title. The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years. 2 (Emphasis added).
8 U.S.C. § 1182(a), (c). Section 212(c), on its face, applies to aliens returning to the United States from abroad and gives the Attorney General the discretion to admit them although they may be excludable under 8 U.S.C. § 1182(a). However, it is well settled that section 212(c) relief also applies to deportation of a lawfully admitted alien with an unrelinquished domicile of seven consecutive years. 3 See, e.g., Ashby v. INS, 961 F.2d 555, 557 and n. 2 (5th Cir.1992) and cases cited therein.
The discretionary authority vested in the Attorney General, including the discretion described in section 212(c), was delegated to the Commissioner of Immigration and Naturalization and the Executive Office of Immigration Review as follows:
Without divesting the Attorney General of any of his powers, privileges, or duties under the immigration and naturalization laws, and except as to the Executive Office, the Board, the Office of the Chief Special Inquiry Officer, and Special Inquiry Officers, there is delegated to the Commissioner [of Immigration and Naturalization] the authority of the Attorney General to direct the administration of the [Immigration and Naturalization] Service and to enforce the Act and all other laws relating to the immigration and naturalization of aliens. The Commissioner may issue regulations as deemed necessary or appropriate for the exercise of any authority delegated to him by the Attorney General, and may redelegate any such authority to any other officer or employee of the Service.
The Executive Office of Immigration Review shall be headed by a Director, who shall be responsible for the general supervision of the Board of Immigration Appeals and the Office of the Chief Immigration Judge in execution of their duties in accordance with 8 C.F.R. part 3. The Director may redelegate the authority delegated to him by the Attorney General to the Chairman of the Board of Immigration Appeals or the Chief Immigration Judge. The Director shall be assisted in the performance of his duties by an Executive Assistant.
(a)(1) Organization. There shall be in the Department of Justice a Board of Immigration Appeals, subject to the general supervision of the Director, Executive Office for Immigration Review. The Board shall exercise so much of the immigration and nationality law as he may delegate to it.
* * * * * *
(b) Appellate jurisdiction. Appeals shall lie to the Board of Immigration Appeals from the following:
* * * * * *
(3) Decisions of immigration judges on applications for the exercise of the discretionary authority contained in section 212(c) of the Act as provided in part 212 of this chapter.
The BIA looks to its decision in Matter of Marin, 16 I & N Dec. 581, 582-83 (BIA 1978), as establishing the criteria for the exercise of discretion in these kinds of cases. As to Section 212(c), the BIA has observed that
[It] does not provide an indiscriminate waiver for all who demonstrate statutory eligibility for such relief. Instead, the Attorney General or his delegate is required to determine as a matter of discretion whether an applicant warrants the relief sought. The alien bears the burden of demonstrating that his application merits favorable consideration.
See also Ashby v. INS, 961 F.2d 555, 557 (5th Cir.1992) As to the criteria pursuant to which the IJ is required to determine each case on its merits by balancing the equities, the BIA has said:
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 interest of this country.
In order to provide the framework for an equitable application of discretionary relief, the Board has enunciated factors relevant to the issue of whether section 212(c) relief should be granted as a matter of discretion. 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 permanent resident of this country. (citations omitted)
Although in an individual case, one or more of these adverse factors may ultimately be determinative of whether section 212(c) relief is in fact granted, their presence does not preclude a respondent from presenting evidence in support of a favorable exercise of discretion. (citation omitted) 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 genuine rehabilitation if a criminal record exists, and other evidence attesting to a respondent's good character (e.g., affidavits from family, friends, and responsible community representatives).
Matter of Marin, 16 I & N Dec. at 584-85. In cases, such as this, where the applicant has been recently convicted of a serious criminal offense, the discretionary waiver according to the BIA is to be granted only upon a demonstration that there are "unusual or outstanding equities" favoring relief. Matter of Marin, 16 I & N Dec. at 586.
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