Hernandez-Robledo v. I.N.S.

• Decision Date: 02 December 1985
• Docket Number: HERNANDEZ-ROBLED,P,No. 85-7014,85-7014
• Citation: 777 F.2d 536
• Parties: Antonioetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 536

777 F.2d 536

Antonio HERNANDEZ-ROBLEDO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 85-7014.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 12, 1985.

Decided Dec. 2, 1985.

Vincent Ochoa, Las Vegas, Nev., for petitioner.

Linda Adams, Eileen A. Carty, Dept. of Justice, Washington, D.C., for respondent.

Petition to Review an Order of the United States Immigration & Naturalization Service.

Before TANG and FERGUSON, Circuit Judges, and GRAY ^*, District Judge.

TANG, Circuit Judge:

Antonio Hernandez-Robledo petitions for review of a decision of the Board of Immigration Appeals (BIA). Petitioner challenges the BIA's finding that he is deportable for obtaining an immigration visa by fraud or willful misrepresentation of a material fact pursuant to 8 U.S.C. Sec. 1182(a)(19) (1982) of the Immigration and Nationality Act (INA or Act). He also challenges the BIA's denial of a waiver of deportation under section 241(f)(1) of the Act, 8 U.S.C. Sec. 1251(f)(1), and denial of suspension of deportation under section 244(a)(1), 8 U.S.C. Sec. 1254(a)(1). For the reasons set forth below, the petition is denied and the BIA's decision affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Antonio Hernandez is a thirty-six year old native and citizen of Mexico. He has resided in the United States for the last eighteen years, and has worked as a waiter at the Frontier Hotel in Las Vegas for the last sixteen years. He is presently married to a Mexican citizen, apparently residing here illegally. Petitioner has one son, Antonio, who is a United States citizen. The son is sixteen years old and resides with his mother, formerly married to petitioner, in the Las Vegas area.

In 1983 Hernandez was charged with burglary and kidnapping. He eventually pleaded guilty to willful and malicious destruction of property. He was sentenced to a one-year suspended jail term, placed on three years probation, and ordered to pay a $1,000 fine and restitution to the victim. ¹

At the time petitioner was ordered to show cause why he should not be deported, he was admitted to the United States for permanent residence as a non-quota "immediate relative" spouse of a U.S. citizen. See 8 U.S.C. Sec. 1151(b). Petitioner was charged as excludable on three grounds: (1) as an alien who procured a visa by fraud or willful misrepresentation of a material fact, 8 U.S.C. Sec. 1182(a)(19); (2) as an alien who entered to perform skilled and unskilled labor without a labor certification, id. Sec. 1182(a)(14); and (3) as an alien not in possession of a valid entry document, id. Sec. 1182(a)(20). The Immigration Judge (IJ) found Hernandez deportable under the latter two provisions, and refused to waive deportation under section 241(f) of the INA or suspend deportation under section 244(a)(1). On appeal, the BIA affirmed those findings and also found petitioner deportable under 8 U.S.C. Sec. 1182(a)(19) for intentionally misrepresenting that he was married to a U.S. citizen when he obtained his permanent resident visa. Hernandez timely petitioned for review. ²

DISCUSSION

1. Deportability Under 8 U.S.C. Sec. 1182(a)(19)

The BIA concluded that Hernandez willfully misrepresented, on January 19, 1982, that he was married to a U.S. citizen, Marita Jean Varrientos, in order to obtain a permanent residence visa when he knew that he had been divorced from her as of December 29, 1980. Hernandez challenges this conclusion. He claims that there is no evidence that he deliberately misrepresented his marital status to obtain a visa and points to the IJ's determination that he was On petition for review, this court determines whether there is reasonable, substantial, and probative evidence in the record as a whole to support the BIA's decision that the INS carried its burden of proving deportability. See 8 U.S.C. Sec. 1105a(a)(4); Paointhara v. INS, 708 F.2d 472, 474 (9th Cir.), amended 721 F.2d 651 (1983); Espinoza-Espinoza v. INS, 554 F.2d 921, 924 (9th Cir.1977). Although this court reviews the decision of the BIA, we may properly consider the IJ's findings if in conflict with those of the BIA. McMullen v. INS, 658 F.2d 1312, 1318 (9th Cir.1981).

not deportable under the pertinent immigration provision, 8 U.S.C. Sec. 1182(a)(19), to buttress his assertion. ³

The INS must have shown below by "clear, unequivocal, and convincing evidence," Woodby v. United States, 385 U.S. 276, 286, 87 S.Ct. 483, 488, 17 L.Ed.2d 362 (1966); Paointhara, 708 F.2d at 474, that petitioner procured his visa by fraud or willful misrepresentation of a material fact, 8 U.S.C. Sec. 1182(a)(19). Petitioner concedes that the INS need not show that an alien intended to deceive the government, but need show only "that the misrepresentation was deliberate and voluntary." Espinoza-Espinoza, 554 F.2d at 925. This, of course, may be shown by circumstantial evidence. See id. at 926.

At the deportation hearing the government produced petitioner's Application for Immigrant Visa (Application), dated January 19, 1982, and a copy of the 1980 Nevada divorce decree of the petitioner and Marita J. Hernandez. ⁴ In his sworn application, Hernandez stated that he was married; that the maiden name of his wife was Jean Varrientos. ⁵ It stated also that both resided at 7320 Westbrook in Las Vegas, and that he intended to join Marita Hernandez at that address. He also stated that his purpose in coming to the United States was to join his wife and children. At the deportation proceeding, Hernandez testified that he knew at the time when he was admitted to the United States on his visa, that he was divorced from Marita Hernandez.

The BIA's conclusion that petitioner deliberately misrepresented that he was married to Marita Jean Hernandez to procure his immigrant visa is substantially supported by the evidence. ⁶ The evidence shows, clearly and convincingly, that petitioner completed his Application after the dissolution of his marriage, and understood that he was in fact divorced from Marita Jean Hernandez.

2. Waiver of Deportation Under Section 241(f), 8 U.S.C. Sec. 1251(f)

Hernandez next contends that that BIA abused its discretion by denying his request for a waiver of deportation under section 241(f)(1) of the INA, 8 U.S.C. Sec. 1251(f)(1). Petitioner argues that the BIA did not properly consider the factors in favor of his request or the extreme hardship which would result from deportation. Petitioner points to such favorable factors as his lengthy residence and term of employment in this country and to his lack of family ties in Mexico.

Section 241(f)(1), provides for a waiver of deportation on the ground that an alien procured a visa "by fraud or misrepresentation, whether willful or innocent," 8 The forgiveness provision under section 241(f)(1) was formerly mandatory, but was amended in 1981 to allow the Attorney General discretion to grant the available relief. ⁸ The BIA's denial is therefore reviewed for an abuse of discretion. Accord Batoon v. INS, 707 F.2d 399, 401 (9th Cir.1983); Ro v. INS, 670 F.2d 114, 116 (9th Cir.1982).

                U.S.C. Sec. 1251(f)(1)(A), if the alien is the spouse, parent, or child of a United States citizen, id. Sec. 1251(f)(1)(A)(i). 7   That section also waives deportation for those grounds of inadmissibility under 8 U.S.C. Secs. 1182(a)(19) (lack of labor certification) and (a)(20) (lack of valid entry document) which were a direct result of the fraud or misrepresentation.  Id. Sec. 1251(f)(1)(B)
                

The BIA found petitioner statutorily eligible for relief, but refused to exercise its discretion in favor of petitioner. ⁹ In its decision the BIA noted petitioner's lengthy Congress' fundamental purpose in enacting section 241(f)(1) of the INA was to keep family units together by precluding deportation of aliens who had gained entry by fraud or misrepresentation, if the effect of deportation would be to separate families composed in part of a United States citizen or lawful permanent resident. INS v. Errico, 385 U.S. 214, 220, 87 S.Ct. 473, 477, 17 L.Ed.2d 318 (1966); Dallo v. INS, 765 F.2d 581, 587 n. 7 (6th Cir.1985); Lai Haw Wong v. INS, 474 F.2d 739, 742 (9th Cir.1973). The BIA accurately described petitioner's family ties. It noted that petitioner has two siblings in the United States, who are lawful, permanent residents, and no known relatives in Mexico. Hernandez' parents are deceased. The BIA noted that the citizen son lives with petitioner's ex-wife, ¹⁰ but that petitioner visits his son weekly and pays child support. ¹¹ The BIA noted that the son's primary family unit would not be affected by petitioner's deportation since the son lives with his mother and her husband. ¹² The BIA also noted that Hernandez' present wife is a Mexican citizen residing here illegally, and concluded that he would not be alone in Mexico.

residence and employment as favorable factors, but undercut that by noting that both were achieved illegally. The latter conclusion is improper since the inquiry is not into the illegality of his or her presence in the United States but the reasons that an alien should be allowed to stay, despite the illegality.

The BIA also took account of several "adverse factors." First, it noted the "serious incident" of petitioner's misrepresentation that he was married to Marita J. Hernandez to obtain a visa. This is a discretionary consideration since section 241(f)(1) may serve to forgive this ground as one for deportation. The BIA noted petitioner's 1983 conviction of malicious destruction of property. This conviction is a serious one. In fact, Congress has expressed its desire to exclude those aliens who have committed crimes, such as this one, which involve moral turpitude. See 8 U.S.C. Sec. 1182(a)(19). ¹³

Although the petitioner's length of stay and stable employment record weigh in favor of granting the waiver of deportation, the BIA's denial of relief under section 241(f)(1) was a rational one since the...