Kabongo v. I.N.S.
| Decision Date | 09 March 1988 |
| Docket Number | Nos. 86-4078,86-4079,s. 86-4078 |
| Citation | 837 F.2d 753 |
| Parties | Muambo Martin Luther KABONGO (86-4078), Mesu Kabongo (86-4079), Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Michael E. Piston (argued), Troy, Mich., for petitioners.
David Bernal, Allen W. Hausman, Robert Kendall, Jr., Mary Reed (argued), Office of I.N.S. Litigation, Criminal Div., Washington, D.C., Anthony Nyktas, Cincinnati, Ohio, for respondent.
Before KEITH, MILBURN and NELSON, Circuit Judges.
Petitioners seek review of the Board of Immigration Appeals' ("the Board") dismissal of their appeal from the decision of the Immigration Judge ("IJ") ordering deportation and denying a request for the discretionary relief of voluntary departure. 1 For the reasons that follow, we affirm the decision of the Board.
Petitioner Dr. Muambo Martin Luther Kabongo is a thirty-five-year-old national of Zaire who first entered the United States as a student in 1971. He last entered the United States on May 8, 1984. When he entered this country in 1971, he entered as a student with an F-1 student visa. See 8 U.S.C. Sec. 1101(a)(15)(F). 2 Petitioner attended King College in Tennessee from September 1971 through May 1973. He then went to the University of Paris in Paris, France, for two years and then returned to the United States again in 1975. At that time, he attended the Eastern Mennonite College in Harrisonburg, Virginia, where he received a bachelor's degree. He then attended Penn State University for one year in a nondegree program.
Petitioner subsequently transferred to Cincinnati Medical College. This transfer was in violation of his F-1 student status. Deportation proceedings were commenced against petitioner in 1978, but he was granted the relief of voluntary departure by the Immigration & Naturalization Service ("INS"). Pursuant to his voluntary departure agreement, petitioner left the United States in June 1979 and relocated in France. In September 1979, he again returned to the United States with another F-1 student visa allowing him to study at the St. Thomas Institute in Cincinnati, Ohio.
Petitioner completed his doctoral studies at the St. Thomas Institute in Cincinnati, Ohio, on September 21, 1982. Petitioner, however, remained in Cincinnati through May 1983. At that time, he departed to Juarez, Mexico, where he attended medical school at the Escuela de Medicina de la Universidad Autonoma, Ciudad Juarez, Mexico.
While studying medicine in Ciudad Juarez, petitioner commuted, at least on a part-time basis, from El Paso, Texas, into Mexico. Petitioner testified at his deportation hearing that he crossed back and forth between the school in Mexico and his residence, which was in El Paso, and that he crossed the border at least once a day.
Petitioner also testified that he last crossed the border into the United States on May 8, 1984. He traveled to Ohio to resume his studies at the University of Cincinnati. However, he was arrested shortly after his arrival in Cincinnati and charged with two counts of making false statements in order to obtain student financial aid in violation of 18 U.S.C. Sec. 1001 and one count of receiving funds by false statements in violation of 20 U.S.C. Sec. 1097(a).
These criminal charges centered around an application which petitioner had made in May 1983 for a guaranteed student loan, a program administered by the United States Department of Education. On his application for the loan, the petitioner represented his status as "a U.S. citizen, national, or other listed related status." J.A. at 137a. Petitioner was convicted on all counts. His conviction was appealed to this court and was affirmed in an unpublished per curiam opinion on April 26, 1985. The United States Supreme Court denied certiorari on January 20, 1986. The petitioner was sentenced and received a suspended sentence and two probationary periods of three years to run concurrently.
Deportation proceedings were initiated against petitioner pursuant to the issuance of an order to show cause on May 29, 1984. The order to show cause alleged in part that petitioner entered the United States at El Paso, Texas, on May 8, 1984, in violation of 8 U.S.C. Sec. 1251(a)(1), as an intending immigrant who entered the country without a valid immigrant visa. The order stated petitioner was excludable under 8 U.S.C. Sec. 1182(a)(20).
The IJ found that petitioner was subject to deportation under 8 U.S.C. Sec. 1251(a)(1), which provides that an alien is deportable who at the time of entry into the United States was excludable under the immigration law at the time of such entry. 3 The IJ found that at the time of the petitioner's entry on May 8, 1984, he was excludable. The conclusion as to excludability was premised on 8 U.S.C. Sec. 1182(a)(20), which provides that any immigrant is excludable who at the time of entry into the United States does not have a valid entry document. 4
In reaching his decision, the IJ concluded that petitioner was an "immigrant" as the term is defined in 8 U.S.C. Sec. 1101(a)(15). Petitioner does not challenge this conclusion. The IJ also determined that when petitioner last entered the United States on May 8, 1984, he was "not in possession of the necessary documents for his admission." J.A. at 8a. Accordingly, petitioner was found deportable.
Turning to petitioner's request for the discretionary relief of voluntary deportation, the IJ found that petitioner was statutorily ineligible for such relief and that, in any case, as a matter of discretion, voluntary departure should not be granted. Voluntary departure is available under 8 U.S.C. Sec. 1254(e), which provides:
The Attorney General may, in his discretion, permit an alien under deportation proceedings ... to depart voluntarily from the United States at his own expense in lieu of deportation if such alien shall establish to the satisfaction of the Attorney General that he is, and has been, a person of good moral character for at least five years immediately preceding his application for voluntary departure under this subsection.
Under this statute, the primary requirement for allowing voluntary departure is a showing of good moral character. In 8 U.S.C. Sec. 1101(f), certain persons are regarded as incapable of being found as having good moral character. This statute provides that persons committing offenses for which they would be excludable under 8 U.S.C. Sec. 1182(a)(9) lack good moral character. 5 Under 8 U.S.C. Sec. 1182(a)(9), aliens are excludable "who have been convicted of a crime involving moral turpitude...." 6
The IJ found that petitioner's convictions for false statements under 18 U.S.C. Sec. 1001 and for obtaining a student loan by fraud under 20 U.S.C. Sec. 1097(a) amounted to crimes of moral turpitude, and, therefore, petitioner was statutorily ineligible for being considered a person of good moral character. Yet, the IJ also found that regardless of statutory eligibility, petitioner should be denied voluntary departure as a matter of discretion:
I would also find assuming arguendo that the respondent were not statutorily barred from voluntary departure that he has not demonstrated by weight of the evidence that he merits and is deserving of the discretionary relief of voluntary departure. Aside from the respondent's studies in the United States and having a family in this country there is nothing els [sic] that shows that he merits and is deserving of a favorable exercise of discretion. His record even viewed in the most favorable light to [him] indicates violations of his immigration status. As early as 1982 respondent completed his studies, but did not depart the United States. The record also indicates tht [sic] while [petitioner] understood that he was in violation of status he ... took steps to apparently evade detection and then change [sic] location from the Cincinnati, Ohio area to the El Paso, Texas area.
J.A. at 13a-14a. Thus, given the record as a whole, the IJ concluded petitioner did not qualify for voluntary departure.
Petitioner then appealed the IJ's decision to the Board. He argued that the IJ had made two errors: (1) that the IJ had erroneously determined that petitioner had "entered" the United States within the meaning of the Act, and (2) that the IJ had abused his discretion in failing to grant voluntary departure. The Board, by decision entered October 20, 1986, affirmed the IJ's decision, essentially adopting the IJ's reasoning. This timely appeal followed.
The Immigration and Nationality Act ("the Act") provides that a petition for review of a deportation order "shall be determined solely upon the administrative record upon which the deportation order is based and the Attorney General's findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive...." 8 U.S.C. Sec. 1105a(a)(4). The decision which is reviewed is that of the Board rather than the IJ's. Hernandez-Robledo v. INS, 777 F.2d 536, 539 (9th Cir.1985).
In cases involving discretion, review is governed by the "much less demanding 'abuse of discretion' standard." Wing Ding Chan v. INS, 631 F.2d 978, 981 (D.C.Cir.1980), cert. denied, 450 U.S. 921, 101 S.Ct. 1371, 67 L.Ed.2d 349 (1981). The denial of the discretionary relief of voluntary departure is reviewable under the "abuse of discretion" standard.
'Abuse of discretion' is a phrase which sounds worse than it really is. All it need mean is that, when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.
Balani v. INS, 669 F.2d 1157, 1160 (6th Cir.1982) (per curiam) (quot...
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