Henry v. I.N.S.

• Decision Date: 07 December 1995
• Docket Number: No. 95-1679,95-1679
• Citation: 74 F.3d 1
• Parties: Warren HENRY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

74 F.3d 1

Warren HENRY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 95-1679.

United States Court of Appeals First Circuit.

Heard Dec. 7, 1995.

Decided Jan. 16, 1996.

Stanley H. Wallenstein, New York City, for petitioner.

Kristen A. Giuffreda, Office of Immigration Litigation, United States Department of Justice, with whom Frank W. Hunger, Assistant Attorney General, and Ellen Sue Shapiro, Senior Litigation Counsel, were on brief, Washington, DC, for respondent.

Before TORRUELLA, Chief Judge, ALDRICH, Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

Invoking 8 U.S.C. Sec. 1105a(a) (1994), petitioner Warren Henry seeks judicial review of an order of the Board of Immigration Appeals (the Board) denying his request for adjustment of status and directing his deportation. We dismiss the petition.

I

Petitioner, a 24-year-old Jamaican national, has resided in the United States since late 1984. His parents and four siblings live here. ¹ Petitioner completed high school and one year of college. He wed a United States citizen, but the marriage did not last. He has a son by another woman. His son lives in the United States, but not with petitioner--and petitioner does not support the boy on a regular basis. Petitioner's overall work record is spotty. He currently operates a hair-styling salon in Springfield, Massachusetts.

Petitioner is no stranger to the legal system. In May of 1991, New York authorities charged him with assault with intent to cause serious harm, criminal possession of a weapon, and menacing. About three weeks thereafter, the police arrested him for jumping the turnstiles on the New York City subway system. Initially, he failed to respond to these charges. When he appeared two years later--doubtless prompted by his desire to avoid looming deportation--the court reduced the charges arising out of the first incident to a single count of simple assault. Petitioner pled guilty both to this reduced charge and to the turnstile-jumping charge. The court imposed a one-year conditional discharge in respect to the former and a fine in respect to the latter.

Another brush with the law proved to be a catalyst for deportation proceedings. On October 13, 1991, Springfield police officers found petitioner (who was carrying false identification papers) in possession of an unlicensed handgun. He pled guilty to a weapons-possession charge on January 13, 1992, using his pseudonym ("Richard Dave Gordon"), and spent several months in jail. On February 4, 1992, the Immigration and Naturalization Service (INS) instituted deportation proceedings.

During the pendency of the proceedings, petitioner had another close encounter with the law. On December 2, 1992, Springfield authorities charged him with assaulting a police officer. The facts surrounding that incident are less than pellucid. The police officer's arrest report states that he restrained petitioner after petitioner made a threatening gesture in response to an inquiry, and that petitioner then hit him. Petitioner categorically denies this account, and says that he neither threatened nor struck the officer. On the date of petitioner's deportation hearing, the assault charge was still pending, and the record reveals no definitive disposition (although, at oral argument before us, petitioner's counsel represented that the charge is now by the boards).

II

At this juncture, we temporarily shift our focus to the statutory scheme. Petitioner's conviction on the firearms charge rendered him deportable under section 241 of the Immigration and Nationality Act (INA), 8 U.S.C. Sec. 1251. ² Confronted by this statute, petitioner attempted to confess and avoid: he conceded deportability, but sought an adjustment of status under INA Sec. 245(a), 8 U.S.C. Sec. 1255(a). ³ This course was theoretically open because, under the immigration laws, the grounds for deportation are not congruent with those for exclusion of aliens. Thus, petitioner's firearms conviction rendered him deportable, but not per se excludable. Compare 8 U.S.C. Sec. 1251(a)(2)(C) with id. Sec. 1182(a) (listing grounds for exclusion).

Generally speaking, resident aliens who are subject to exclusion upon leaving and attempting to reenter the country may apply for waivers of inadmissibility under INA Sec. 212(c), 8 U.S.C. Sec. 1182(c). ⁴ Section 212(c) waivers are equally available to aliens in deportation proceedings as long as the ground for deportation is also a stated ground for exclusion. See Campos v. INS, 961 F.2d 309, 313 (1st Cir.1992). But such waivers are not available to aliens in deportation proceedings when the ground for deportation is not also a stated ground for exclusion. See id. at 316.

III

Petitioner's case falls between these stools. Lacking the foundational prerequisite for seeking a section 212(c) waiver, he opted to use an application for adjustment of status under section 245(a) as an alternate vehicle. See Matter of Rainford, Interim Dec. No. 3191, at 6 (BIA 1992) (authorizing status-adjustment applications in such circumstances). The INS acknowledges that he is eligible to be considered for adjustment of status under section 245(a). Whether he deserves the relief is a different story. On that score, an immigration judge (IJ) initially considered and denied petitioner's application for adjustment of status. He explained that a section 245(a) adjustment is a discretionary remedy; that to receive such a benefice an otherwise deportable alien must show unusual or outstanding equities sufficient to overbalance the negative factor(s) on which the finding of deportability rests; and that, in petitioner's case, the equities did not adequately preponderate in his favor.

Petitioner appealed. See 8 C.F.R. Sec. 3.1(b)(2) (1995) (providing for administrative appeals of such orders). The Board, exercising de novo review, see Gouveia v. INS, 980 F.2d 814, 817 (1st Cir.1992), denied relief. In its view, petitioner's strong points, e.g., his family ties to the United States, his protracted residence here, and his belated efforts at rehabilitation, did not overcome the discredit inherent in his criminal record.

IV

We do not print on a pristine page. The IJ made extensive findings in this matter, and the Board issued a comprehensive decision adopting many of those findings. After careful perscrutation of the record, we discern no fatal flaw in the Board's rationale. Thus, we uphold the denial of petitioner's request for adjustment of status for essentially the reasons stated by the Board, adding relatively few comments.

A.

The decision to grant or deny an application for adjustment of status is one that rests within the informed discretion of the Attorney General, see 8 U.S.C. Sec. 1255(a), and, by delegation, within the informed discretion of the Board. As a result, the ambit of judicial review is tightly circumscribed. Courts are entitled to probe the Board's discretionary decisions only to the extent necessary to ascertain whether the Board misread the law or otherwise misused its discretion. See Martinez v. INS, 970 F.2d 973, 974 (1st Cir.1992).

To be sure, adjudicatory tribunals can exceed grants of discretion--even ringing grants of broad, essentially standardless discretion--in various ways. We have pointed out that courts can abuse discretion in any of three aspects, namely, by neglecting to consider a significant factor that appropriately bears on the discretionary decision, by attaching weight to a factor that does not appropriately bear on the decision, or by assaying all the proper factors and no improper ones, but nonetheless making a clear judgmental error in weighing them. See, e.g., United States v. Roberts, 978 F.2d 17, 21 (1st Cir.1992); Independent Oil & Chem. Workers of Quincy, Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir.1988). Like a court, so, too, an administrative adjudicative body charged with making a discretionary decision can stray beyond the pale in any of these three ways.

B.

Petitioner asserts that the Board abused its discretion in all the respects that we have mentioned. We deal briefly with each facet of this trifurcated assertion.

1.

First and foremost, petitioner asseverates that the Board improperly failed to consider all the factors favorable to him. In particular, citing Matter of Marin, 16 I & N Dec. 581, 584-85 (BIA 1978), a section 212(c) waiver case, he maintains that the Board unnecessarily limited the data it considered in assessing the equities underpinning his request for adjustment of status.

In the section 212(c) milieu, the Board and reviewing courts habitually refer to a stock list of factors that potentially inform the equities attendant to a waiver. ⁵ Petitioner asks us to transplant this list wholesale and mandate its use in connection with status-adjustment applications under section 245(a). This importuning reaches too far: fairly viewed, it solicits the overruling, sub silentio, of this court's decision in Campos. There, we held that the Attorney General could rationally decide not to make section 212(c) waiver relief available to aliens convicted of firearms offenses that rendered them deportable but not automatically excludable. See Campos, 961 F.2d at 316. In so holding, we made it crystal clear that the section 212(c) waiver provision, 8 U.S.C. Sec. 1182(c), "could not be utilized to waive all grounds of deportability, but only those grounds of deportability having a corresponding ground of excludability...." Id. at 313 (emphasis in original).

Petitioner today tries to bring in through the back door the same iteration that the Campos court barred at the front door. His core argument is that the Board abused its discretion by not applying the section 212(c) waiver criteria to an adjustment of status case. Were we to accept this construct, we would effectively require INS to afford deportable but not necessarily excludable aliens (like petitioner) relief...