Gouveia v. I.N.S.

• Decision Date: 02 November 1992
• Docket Number: No. 91-2022,91-2022
• Citation: 980 F.2d 814
• Parties: Jose GOUVEIA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 814

980 F.2d 814

Jose GOUVEIA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 91-2022.

United States Court of Appeals First Circuit.

Heard Nov. 2, 1992.

Decided Dec. 7, 1992.

Mark L. Galvin, Providence, R.I., for petitioner.

Charles E. Pazar, Atty., Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and Robert Kendall, Jr., Asst. Director, Office of Immigration Litigation, Washington, D.C., were on brief, for respondent.

Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, SELYA, Circuit Judge.

SELYA, Circuit Judge.

Petitioner, Jose Sidonio de Gouveia (Gouveia), seeks review of an order of the Board of Immigration Appeals (the Board) denying his application for a waiver of deportation under section 212(c) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(c) (1988), and ordering his deportation to Portugal. We have jurisdiction under 8 U.S.C. § 1105a(a) (1988), which provides for judicial review of final deportation orders. After careful perscrutation of the record and the applicable law, we uphold the Board's order.

I. BACKGROUND

Petitioner is a forty-four-year-old native of Portugal who entered this country as a lawful permanent resident in 1975. Roughly twelve years later, he was charged with, and pleaded guilty to, two counts of rape of a child under sixteen, two counts of indecent assault and battery of a child under fourteen, and one count of indecent assault and battery of a child over fourteen. This misconduct, which involved petitioner's stepdaughters, occurred over a three-year span. ¹ Following his guilty plea, petitioner was sentenced to a fifteen-year prison term. He was paroled after serving nineteen months and is currently on probation.

In August of 1988, the Immigration and Naturalization Service (INS) commenced deportation proceedings against petitioner pursuant to section 241(a)(4) of the Act, 8 U.S.C. § 1251(a)(4) (1988). Although conceding deportability on the ground that he had been convicted of crimes involving moral turpitude, petitioner sought a waiver of deportation under section 212(c).

II. THE LEGAL FRAMEWORK

The Board has discretionary authority to grant section 212(c) waivers. In deciding whether to exercise that discretion, it must balance the "social and humane" factors supporting the application against adverse factors favoring deportation. The factors that should be considered before granting a waiver were discussed in Matter of Marin, 16 I. & N.Dec. 581 (BIA 1978). ² Factors supporting a waiver include such things as (1) family ties within the United States; (2) residence of long duration in the United States; (3) evidence of hardship to petitioner or petitioner's family if deportation occurs; (4) service in the United States Armed Forces; (5) a steady employment history; (6) the existence of property or business ties in this country; (7) community service; (8) rehabilitation; and (9) any other evidence fairly indicating petitioner's good character. See id. at 584-85. Factors which will tend to support a denial of discretionary relief include such things as (1) the serious nature or aggravating circumstances of the particular grounds for deportation; (2) proof of additional immigration violations; (3) petitioner's overall criminal record, including its recency and gravity; and (4) any other evidence fairly indicating bad character or adumbrating petitioner's undesirability as a resident. See id. at 584. The presence of any one of these negative factors may be a sufficient basis for withholding relief in an individual case. Id.

When a serious crime has been committed, it is incumbent upon a petitioner not only to demonstrate that favorable factors preponderate but also to present "unusual or outstanding equities" as a prerequisite for a waiver of excludability. Withal, even the presence of preponderant equities or equities that in the abstract could qualify as "unusual" or "outstanding" does not compel the Board to grant relief. See Hazzard v. INS, 951 F.2d 435, 438 (1st Cir.1991); Joseph v. INS, 909 F.2d 605, 607 (1st Cir.1990).

III. PRIOR PROCEEDINGS

Gouveia's case was heard in the first instance by an Immigration Judge (IJ). The evidence showed that petitioner, who lives with his mother and stepfather, had not left the United States since his arrival in 1975; his extended family, including his mother, son, daughter, grandchild, and four sisters, resides here; he has been continuously employed since arriving in this country (except for the period of his incarceration); he makes periodic support payments for his daughter's behoof under the terms of a divorce decree; he attends weekly counseling sessions; and he participates in community service programs. The IJ also received into evidence favorable letters from petitioner's probation and parole officers, parish priest, and sex-abuse counselor, among others.

Despite his guilty plea, petitioner contended at the immigration hearing that, although he touched his stepdaughters' breasts and genitalia, he never engaged in sexual intercourse with them. He said that he entered a guilty plea for two main reasons: (1) to obtain a shorter sentence, and (2) because he believed that, under the rape counts, he was being charged with merely touching his victims rather than with intercourse. In support of this story, petitioner's sister testified that he never raped the girls.

The IJ credited Gouveia's account and granted a waiver. On INS's appeal, the Board scrutinized the record de novo and reached an opposite result. It determined, inter alia, that the IJ misapprehended the unusual or outstanding equities test, and, moreover, that he erred in going behind petitioner's conviction to find as a fact that petitioner did not have sexual intercourse with his stepdaughters. Gouveia now seeks review of the Board's order.

IV. ANALYSIS

Although petitioner assigns fivefold error to the Board's order, we need not tarry. Instead, we pause only long enough to explain why each of these objections is without merit.

De Novo Review

First, Gouveia disparages the Board's power to conduct a de novo review in this case. His decrial is unavailing. It is settled beyond cavil that the Board is not required to defer to an immigration judge's findings of fact or conclusions of law in a deportation/waiver case, and may, if it chooses to do so, review the record de novo. See Martinez v. INS, 970 F.2d 973, 974 (1st Cir.1992); Cordoba-Chaves v. INS, 946 F.2d 1244, 1249 (7th Cir.1991). Nothing about this case warrants a departure from this firmly established tenet.

Collateral Attack

The Board did not err in determining that the IJ acted extrajudicially when he found that petitioner had not raped his stepdaughters. Criminal convictions cannot be collaterally attacked during immigration proceedings. See De La Cruz v. INS, 951 F.2d 226, 228 (9th Cir.1991); Trench v. INS, 783 F.2d 181, 184 (10th Cir.), cert. denied, 479 U.S. 961, 107 S.Ct. 457, 93 L.Ed.2d 403 (1986).

Before leaving this point, we sound a note of caution. The unusual or outstanding equities test requires that a balance be struck. In order to accomplish this balancing, the nature and gravity of the conviction(s) undergirding the deportation proceedings must be scrutinized. Because a label alone is insufficient to index the severity of a particular criminal act, a judge must necessarily be free to inquire into the circumstances surrounding the commission of the crime(s). Thus, the rule prohibiting collateral attack on criminal convictions does not preclude the decision-maker from ascertaining the context in which a criminal act occurred or from accepting evidence about mitigating circumstances which may surround a conviction. See Matter of Roberts, Int.Dec. 3148, p. 8 (BIA 1991).

Applying these principles to Gouveia's case, it would have been well within the IJ's proper province to hear and consider evidence of circumstances surrounding Gouveia's commission of the crimes, such as whether he suffered from an identifiable mental illness at the time of the abuse, in an attempt to mitigate the offenses' gravity. It was not within the IJ's province, however, to reexamine the question of whether the crimes actually occurred. An immigration judge cannot substitute his judgment for that of the criminal courts in order to determine core questions of guilt and innocence. ³

Put another way, petitioner, in pleading guilty to the rape charges, admitted the central facts contained in the indictment, and the IJ was powerless to gloss over those admissions. Hence, the IJ's factual finding that petitioner did not commit rape was ultra vires and the Board was fully justified in overturning it.

Applicability of Test

Noting that the unusual or outstanding equities test has most often been applied to drug offenders, Gouveia asserts that the test is inapposite in his case. He is wrong. The need to demonstrate unusual or outstanding equities is not triggered exclusively by the commission of crimes involving drugs. The requirement applies with full force to other types of serious crimes. See Cordoba-Chaves, 946 F.2d at 1248 (requiring demonstration of increased equities by waiver applicant convicted of murder). Gravity, not narcotics, pulls the trigger and brings the higher "unusual or outstanding equities" standard into play. See Matter of Buscemi, 19 I. & N.Dec. 628, 633 (BIA 1988).

In this case, to state the rule is to defeat petitioner's objection. A sustained pattern of molestation, directed toward children of tender years by an individual with responsibility for their welfare, is a matter of the utmost gravity. Thus, the Board acted providently when it required petitioner to show unusual or outstanding equities as a precondition to a waiver of excludability.

Lack of Rehabilitation

Petitioner suggests that the Board erred in finding incomplete rehabilitation and considering this...