Martinez v. I.N.S.

• Decision Date: 28 July 1992
• Docket Number: No. 92-1008,92-1008
• Citation: 970 F.2d 973
• Parties: Javier A. MARTINEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 973

970 F.2d 973

Javier A. MARTINEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 92-1008.

United States Court of Appeals First Circuit.

Submitted May 31, 1992.

Decided July 28, 1992.

Roberto Gonzalez, and Rappoport, Audette, Bazar & Farley, East Providence, R.I., on brief, for petitioner.

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

Before SELYA, CYR and BOUDIN, Circuit Judges.

SELYA, Circuit Judge.

This is a petition to review a decision of the Board of Immigration Appeals (Board) denying an application for a waiver of deportation under § 212(c) of the Immigration and Naturalization Act (Act), 8 U.S.C. § 1182(c).

I. BACKGROUND

Petitioner is a twenty-seven-year-old native and citizen of the Dominican Republic. He first entered the United States on a two-year tourist visa in 1974, but remained here unlawfully after the visa expired. In 1983 he obtained lawful permanent resident status. In 1990, petitioner was convicted for possession of cocaine, delivery of heroin, and driving to endanger. Following these convictions, the government brought deportation proceedings. At a preliminary hearing, petitioner conceded that he had been convicted of violating controlled substance laws and was, therefore, deportable. He was also found to be deportable as an aggravated felon. After a hearing, however, an immigration judge (IJ) granted petitioner's application for a discretionary waiver of deportation under section 212(c) of the Act. The Immigration and Naturalization Service appealed the IJ's decision. The Board sustained the appeal because petitioner "has a significant history of criminal activity ... and ... has engaged in criminal activities for the entire time he has been a lawful permanent resident." Petitioner now seeks appellate review.

II. DISCUSSION

The Board's decision whether to grant a waiver under section 212(c) is discretionary. In reviewing a discretionary decision of the Board, we determine only whether the decision was arbitrary, capricious, or an abuse of discretion. Hazzard v. INS, 951 F.2d 435, 438 (1st Cir.1991). Accordingly, we will uphold a decision of the Board denying a section 212(c) waiver "unless it was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Williams v. INS, 773 F.2d 8, 9 (1st Cir.1985). To the extent that we review the Board's factfinding, we do so under the substantial evidence standard. Blackwood v. INS, 803 F.2d 1165, 1168 (11th Cir.1986). That is, if the facts found by the Board are supported by "such relevant evidence as a reasonable mind might accept to support [such] a conclusion," they will be upheld upon review. Consolo v. Federal Maritime Commission, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 1026-27, 16 L.Ed.2d 131 (1966).

In this proceeding, petitioner makes several arguments. We deal with these in turn.

1. Deferral to the Immigration Judge's Findings

Petitioner argues that the Board was required to defer to the IJ's findings on credibility and rehabilitation. This argument has no merit. It is well established that the Board may review the administrative record de novo and make its own findings of fact and law, including findings relating to a petitioner's credibility. Cordoba-Chaves v. INS, 946 F.2d 1244, 1249 (7th Cir.1991); Castillo-Rodriguez v. INS, 929 F.2d 181, 184-85 (5th Cir.1991); Goon Wing Wah v. INS, 386 F.2d 292, 293-94 (1st Cir.1967).

2. Failure to Admit Additional Evidence or to Remand to Immigration Judge

Upon appeal to the Board petitioner submitted additional evidence to support the IJ's decision, asking the Board to remand the case for further hearing if it did not uphold the decision. The Board declined to consider the additional evidence, noting that "only 5 months have elapsed since the respondent's release from prison.... Accordingly, any new evidence of rehabilitation, even if considered, would not be conclusive."

We do not agree with petitioner that the Board's failure to consider petitioner's additional evidence or to remand the case for further hearing was an abuse of discretion. To the extent that the evidence repeated testimony given at the hearing, it was cumulative, hence, not material. See Cobourne v. INS, 779 F.2d 1564, 1566-67 (11th Cir.1986); Young v. Department of Justice, 759 F.2d 450, 456-57 (5th Cir.), cert. denied, 474 U.S. 996, 106 S.Ct. 412, 88 L.Ed.2d 362 (1985). And as the Board noted, the additional evidence covered a very brief period of time. Since petitioner had once before completed a drug treatment program, but had subsequently continued to use and sell drugs, the Board's determination that evidence of such short duration would not conclusively establish his rehabilitation was reasonable. See Blackwood, 803 F.2d at 1167.

3. Factual and Legal Errors

Petitioner claims that the Board made numerous factual and legal errors. To the extent that petitioner's assignments of error concern inferences the Board drew from conflicting evidence or the way in which the Board weighted different factors, they are without merit. See Consolo, 383 U.S. at 620, 86 S.Ct. at 1026; Joseph v. INS, 909 F.2d 605, 607 (1st Cir.1990); Osuchukwu v. INS, 744 F.2d 1136, 1141 (5th Cir.1984). We discuss only the remaining asseverations.

First, petitioner claims that the Board abused its discretion by failing to find that petitioner's employment history was a favorable factor. In its decision the Board noted that "a history of employment" is a favorable factor to be considered in determining whether to grant the section 212(c) waiver, but it failed to make any mention of petitioner's own employment history. Assuming the Board's failure to consider a relevant favorable factor may sometimes constitute an abuse of discretion, see, e.g., Jen Hung Ng v. INS, 804 F.2d 534, 540 (9th Cir.1986), the evidence submitted in this case shows that petitioner's employment history would not be a significant favorable factor for him. With the exception of his employment in 1982-83, his precise dates of employment before 1986 are either unverified by his employers or unknown. From 1986 to 1990, when he was imprisoned, petitioner was engaged in lawful work for only five months. During the same time frame, he spent several years engaged in the illicit selling of drugs.

We also note that petitioner's attorney failed to present petitioner's employment history as a favorable factor to the IJ. Moreover, counsel did not solicit petitioner's oral testimony on this point at the hearing. In arguing to the Board that his prior employment was a favorable factor, petitioner stated simply, and incorrectly, that he "has a record of steady employment going back to 1983." He made no attempt to elaborate on his allegation or to discuss the specifics of the documentary evidence he submitted. A party who suggests a point to the Board fleetingly and without any developed argumentation is not entitled to complain if the Board disregards the passing reference. See Nunez-Pena v. INS, 956 F.2d 223, 225 n. 4 (10th Cir.1992); Khalaf v. INS, 909 F.2d 589, 592 (1st Cir.1990). Consequently, the Board's failure to consider petitioner's employment history was not error.

Second, petitioner argues that the Board erred by failing to consider certain specific claims made or evidence presented in the proceedings below. We have carefully examined the alleged omissions. The Board discussed all the salient aspects of petitioner's claims which were (a) properly before it and (b) supported by specific evidence. No more was exigible. Where, as here, the Board has given reasoned consideration to the petition, and made adequate findings, we will not require that it address specifically each claim the petitioner made or each piece of evidence the petitioner presented. See Vergara-Molina v. INS, 956 F.2d 682, 685 (7th Cir.1992); Villanueva-Franco v. INS, ...