In the Matter of Coelho
| Decision Date | 30 April 1992 |
| Docket Number | Interim Decision Number 3172,A-18024357. |
| Citation | 20 I&N Dec. 464 |
| Parties | MATTER OF COELHO. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated October 30, 1989, the immigration judge found the respondent deportable under section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(11) (1988), as an alien convicted of a controlled substance violation.1 The immigration judge further denied the respondent's application for a waiver under section 212(c) of the Act, 8 U.S.C. § 1182(c) (1988), and ordered his deportation to Portugal. The respondent appealed from that decision and requested oral argument. The request was granted on May 7, 1991 but was later waived by the respondent through counsel. The respondent submitted a brief to the Board and then subsequently filed a motion to remand for additional proceedings. The Board received no brief or response from the Immigration and Naturalization Service. The motion to remand will be denied and the appeal will be dismissed.
The respondent, a 36-year-old native and citizen of Portugal, entered the United States as a lawful permanent resident on August 16, 1968. The record reflects that the respondent was convicted on August 28, 1986, in the United States District Court for the District of Massachusetts, of knowingly and intentionally conspiring with others to possess with the intent to distribute cocaine, and of knowingly and intentionally possessing with the intent to distribute quantities of cocaine in violation of 18 U.S.C. § 2 (1982) and 21 U.S.C. §§ 841(a)(1) and 846 (1982). The respondent was sentenced to 3 years' confinement, given a special parole term of 3 years, and ordered to pay a special assessment of $150. On August 31, 1988, the Service issued an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S), charging that the respondent was deportable for having been convicted of a law relating to a controlled substance.
At his deportation hearing, the respondent admitted to the truth of the allegations contained in the Order to Show Cause and conceded his deportability. The respondent then applied for a waiver of inadmissibility under section 212(c) of the Act. In support of his request for relief, the respondent submitted his application, his written statement, and a letter from his pastor. During the deportation hearing, the respondent offered his testimony and the testimony of his brother and a friend to support his request for relief. In an effort to show that he merited a favorable exercise of discretion, the respondent primarily relied upon his arrival in the United States in 1968 when he was 13 years old, his continued residence in this country since that time, and the fact that he is the father of two United States citizen children who would suffer hardship if the respondent is deported.
The immigration judge first noted that the respondent appeared to be statutorily eligible for a waiver of inadmissibility. Then the immigration judge evaluated the favorable factors presented by the respondent, including his 23 years of residence in the United States; his two United States citizen children; the residence of eight of his nine siblings in either the United States or Canada; and his elderly mother's residence in this country with the respondent.2 The immigration judge considered the respondent's prior employment history as a fisherman, noting that the respondent is out to sea for up to 14 days, then returns to port for a few days until he is able to obtain employment on another fishing vessel.
The immigration judge contrasted these factors with the respondent's crime. According to the immigration judge, the respondent testified that he never sold large quantities of cocaine. The immigration judge compared this testimony to the respondent's account of his arrest, in which he stated that he had about 2 pounds of cocaine. The immigration judge noted the respondent's testimony that he intended to sell the cocaine for $50,000 and realize a profit of $5,000 for his participation in the scheme. The immigration judge further considered that the record reflected that the respondent had been using and selling cocaine for at least several months prior to his arrest. After weighing these factors, the immigration judge concluded that the serious nature of the respondent's conviction and criminal involvement outweighed the favorable factors of record. He further determined that the respondent did not show that a grant of relief was warranted in the exercise of discretion, so he denied the respondent's request for a waiver of inadmissibility.
On appeal, the respondent, through present counsel, asserts that he met his burden of demonstrating that his application merited a favorable exercise of discretion. The respondent contends that the evidence of his family ties within the United States, his residence of long duration in this country since a young age, hardship to himself and his family once his deportation occurs, employment history, value to the community, rehabilitation, good character, lifestyle, behavior while in prison, and his demeanor all support a favorable exercise of discretion. The respondent believes that he demonstrated unusual and outstanding equities and that it was an abuse of discretion for the immigration judge to deny him relief. We disagree and will dismiss the respondent's appeal. After reviewing the respondent's application for a waiver of inadmissibility, we will examine the respondent's motion to reopen the proceedings.
Section 212(c) of the Act provides, in pertinent part, that aliens lawfully admitted for permanent residence who temporarily proceed abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of 7 consecutive years, may be admitted in the discretion of the Attorney General without regard to certain specified grounds of exclusion. Pursuant to our decision in Matter of Silva, 16 I&N Dec. 26 (BIA 1976), a lawful permanent resident is prima facie eligible for relief from deportation under section 212(c), even though he has not proceeded abroad subsequent to the acts which rendered him deportable. See Francis v. INS, 532 F.2d 268 (2d Cir. 1976); see also Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990; A.G. 1991), aff'd, 983 F.2d 231 (5th Cir. 1993).
Section 212(c) of the Act, however, 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 alien merits the relief sought, and the alien bears the burden of demonstrating that his application warrants favorable consideration. Matter of Marin, 16 I&N Dec. 581, 582-83 (BIA 1978).
The exercise of discretion in a particular case necessarily requires consideration of all the facts and circumstances involved. There must be a balancing of the social and humane considerations presented in an alien's favor against the adverse factors evidencing his undesirability as a permanent resident. Id. at 584. The Board has enunciated numerous factors to be considered in determining whether or not to grant section 212(c) relief. 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 at a young age), evidence of hardship to the respondent and his 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. Id. at 584-85. Among the factors deemed adverse to an alien are the nature and underlying circumstances of the exclusion or deportation 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 a permanent resident of this country. Id. at 584. Moreover, one or more of these adverse considerations may ultimately be determinative of whether section 212(c) relief is in fact granted in an individual case. Id.
We also have pointed out that as the negative factors grow more serious, it becomes incumbent upon the alien to introduce additional offsetting favorable evidence, which in some cases may have to involve unusual or outstanding equities. Id. at 585. Such a heightened showing is required when an alien has been convicted of a serious drug offense. Id. at 586 n.4. The necessity of demonstrating unusual or outstanding equities is not exclusively triggered by serious crimes involving controlled substances, however....
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