Matter of Burbano
| Decision Date | 13 September 1994 |
| Docket Number | A-38045964,Interim Decision Number 3229 |
| Citation | 20 I&N Dec. 872 |
| Parties | MATTER OF BURBANO In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated January 27, 1993, an immigration judge found the respondent deportable as charged under sections 241(a)(2)(A)(i), (A)(ii), and (B)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1251(a)(2)(A)(i), (A)(ii), and (B)(i) (Supp. V 1993), as an alien who has been convicted of a crime involving moral turpitude within 5 years after entry, of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, and of a controlled substance violation. The immigration judge also denied the respondent's application for a waiver of inadmissibility under section 212(c) of the Act, 8 U.S.C. § 1182(c) (Supp. V 1993), and ordered him deported from the United States to his native country of Colombia. The respondent appealed from that decision. The appeal will be dismissed.
The only issue raised on appeal is whether relief from deportation is warranted as a matter of discretion. However, before discussing this matter, there is a preliminary issue to be addressed. The Board of Immigration Appeals has recently been questioned concerning the standard of review we utilize when considering a discretionary decision of the immigration judge, such as the section 212(c) application in the instant case. See Ortiz-Salas v. INS, 992 F.2d 105 (7th Cir. 1993); see also Yepes-Prado v. INS, 10 F.3d 1363 (9th Cir. 1993); Campos-Granillo v. INS, 12 F.3d 849 (9th Cir. 1993). Specifically, we have been questioned about the relationship between the Board and the immigration judge in terms of discretionary authority.
We state at the outset that when the Board engages in a review of a discretionary determination by an immigration judge, we rely upon our own independent judgment in deciding the ultimate disposition of the case. This is in accord with our mandate to "exercise such discretion and authority conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case." See 8 C.F.R. § 3.1(d)(1) (1994). The authority of the Board to issue a discretionary decision independent from that of the immigration judge has been recognized by the federal courts. See, e.g., Panrit v. INS, 19 F.3d 544 (10th Cir. 1994); Huaman-Cornelio v. BIA, 979 F.2d 995, 998-99 (4th Cir. 1992); Ghassan v. INS, 972 F.2d 631, 635 (5th Cir. 1992), cert. denied, 113 S. Ct. 1412 (1993); Charlesworth v. INS, 966 F.2d 1323, 1325 (9th Cir. 1992); Hazzard v. INS, 951 F.2d 435, 440 (1st Cir. 1991); Cordoba-Chaves v. INS, 946 F.2d 1244, 1249 (7th Cir. 1991). Thus, we do not employ an abuse of discretion standard when reviewing discretionary determinations of immigration judges.
The advantage of an independent standard of review is that it promotes uniformity in the application of the various discretionary provisions of the Act. See Matter of Cerna, 20 I&N Dec. 399, 405 (BIA 1991) (), aff'd, Cerna v. INS, 979 F.2d 212 (11th Cir. 1992). We note in this regard that the individualistic nature of a discretionary determination permits the possibility that differing decisions may be reached based on essentially identical facts, with each decision arguably falling within a reasonable exercise of discretion. If our review were limited to questioning whether the immigration judge abused his or her discretion, we would be unable to remedy such situations. However, by utilizing our own discretionary authority, there exists a forum available to promote uniformity of result.
Nevertheless, our independent review authority does not preclude the Board from adopting or affirming a decision of the immigration judge, in whole or in part, when we are in agreement with the reasoning and result of that decision. In this situation, the Board's final decision may be rendered in a summary fashion; however, such summary treatment of a case does not mean that we have conducted an abbreviated review of the record or have failed to exercise our own discretion. Rather, it is simply a statement that the Board's conclusions upon review of the record coincide with those which the immigration judge articulated in his or her decision.
Moreover, we recognize that the immigration judge who presides over a case has certain observational advantages due to his or her presence at the exclusion or deportation hearing. For example, the Board ordinarily gives significant weight to the determinations of the immigration judge regarding the credibility of witnesses at the hearing. See, e.g., Matter of Pula, 19 I&N Dec. 467 (BIA 1987); Matter of Magana, 17 I&N Dec. 111 (BIA 1979); Matter of T----, 7 I&N Dec. 417 (BIA 1957); cf. Ghassan v. INS, supra (). Similarly, we also may give significant consideration to other findings of an immigration judge that are based upon his or her observance of witnesses when the basis for those findings are articulated in the immigration judge's decision.
Finally, we acknowledge that questions concerning our standard of review were invited by occasional decisions of the Board which concluded that the immigration judge "did not abuse his discretion." We agree that the use of this and similar language can be misleading. However, such language is attributable to inartful drafting rather than to a limited review of the record on the part of the Board. We additionally point out that sometimes the only question raised on appeal to this Board is whether the immigration judge "abused his or her discretion." In this situation, our conclusion on the issue might simply represent a response to that specific argument on appeal. Nonetheless, we recognize the desirability of avoiding such language, and we reiterate that the Board relies upon its own independent judgment in deciding the ultimate disposition of a case when reviewing a discretionary determination of an immigration judge.
We now turn to the respondent's appeal, in which he contests the denial of his application for a waiver of inadmissibility under section 212(c) of the Act.1 The respondent argues that the immigration judge erred in finding that his equities are insufficient to outweigh the adverse factors of record. We have reviewed the record in its entirety, and we conclude that the immigration judge accurately considered the evidence presented and applied the relevant legal precedent. See generally Matter of Marin, 16 I&N Dec. 581 (BIA 1978); see also Matter of Roberts, 20 I&N Dec. 294 (BIA 1991); Matter of Edwards, 20 I&N Dec. 191 (BIA 1990); Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988). We agree with the reasoning of the immigration judge's decision and with his conclusion that the application should be denied in the exercise of discretion. We therefore adopt the content of that decision and add only the following observations.
Although not specifically stated by the immigration judge, the respondent's lengthy criminal history requires him to show that he has unusual or outstanding equities in this country.2 See Matter of Buscemi, supra. We concur with the immigration judge that the respondent's equities in this country, while significant, are insufficient to overcome his numerous criminal convictions.3
As the respondent has been a lawful permanent resident of the United States since June 1983, his period of residency extends only 3 years beyond the statutory minimum for section 212(c) relief. He has been incarcerated for a number of those years. Further, his first criminal conviction occurred only 3 years after his entry. These factors diminish the significance of the respondent's length of residence and prevent that residence from being deemed an outstanding equity.
With respect to the respondent's family ties, his mother and four siblings are lawful permanent residents of the United States. Several of these relatives testified on his behalf at the hearing. However, neither their testimony nor any other evidence of record indicates that the adverse effect of deportation upon the respondent and his family will exceed that typically suffered by a family in this situation. Therefore, while we are sympathetic to the inherent difficulties involved in family separation, we cannot find that the respondent's family ties in this country qualify as unusual or outstanding equities. We further note that the respondent is married and has a United States citizen step-child. However, these...
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