Matter of Marin
| Decision Date | 04 August 1978 |
| Docket Number | Interim Decision #2666,A-13923847 |
| Parties | MATTER OF MARIN In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated August 23, 1977, the immigration judge found the respondent deportable as charged, denied his application for a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c), and ordered his deportation to Colombia. The respondent has appealed. The appeal will be dismissed.
The respondent, a 46-year-old native and citizen of Colombia, was admitted to the United States for lawful permanent residence on February 3, 1965. In March 1976, he entered a guilty plea in a New York State criminal court to the felony charge of criminal sale of cocaine. On April 29, 1976, he was sentenced to the minimum mandatory sentence provided under New York law for that offense, an indeterminate sentence of one year to life. Including credited pretrail confinement, the respondent served some 30 months of this sentence (from November 1975 through May 1978) in New York State penal institutions.
On May 11, 1977, while still confined, an Order to Show Cause was issued charging the respondent with being deportable under section 241(a)(11) of the Act, 8 U.S.C. 1251(a)(11), as an alien convicted of a designated drug offense. At the hearing held on July 20, 1977, the respondent conceded deportability. The immigration judge accordingly found him deportable as charged and that finding is not in issue on appeal.
At the deportation hearing, the respondent applied for relief under section 212(c) of the Act. That section 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 seven consecutive years, may be admitted in the discretion of the Attorney General without regard to certain specified grounds for exclusion enumerated in section 212(a) of the Act. The grounds specified include an alien who has been convicted of a drug offense, as set forth in section 212(a)(23) of the Act, 8 U.S.C. 1182(a)(23). In light of our decision in Matter of Silva, Interim Decision 2532 (BIA 1976), the immigration judge properly concluded that the respondent was statutorily eligible for relief from deportation under section 212(c) even though he had not proceeded abroad subsequent to his entry for lawful permanent residence. See Francis v. INS, 532 F.2d 268 (2 Cir.1976).
Section 212(c), 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 applicant warrants the relief sought. The alien bears the burden of demonstrating that his application merits favorable consideration.
In the case before us, the immigration judge concluded that the respondent had failed to establish that "a waiver of deportability [was] merited as a matter of discretion."1 In this regard, he noted the nature of the respondent's criminal offense and subsequent confinement and concluded that a waiver should not be granted absent a showing of "unusual or outstanding equities." Other than his residence in the United States for 12 years, however, the respondent was "unable to advance any substantial equities."2 He was single, childless, and had no relatives residing in this country. His closest relatives (a brother and sister) both lived in Colombia. The respondent's employment history was sporadic and he presented no evidence that he would have particular difficulty returning to Colombia other than stating that "life [was] too hard there."
Based on the "entire record," the immigration judge concluded that the respondent's conviction as a drug offender had not been sufficiently offset by his "twelve years of residence in the United States" and "his adjustment to prison life" to warrant the granting of discretionary relief under section 212(c). The application for relief was accordingly denied.
On appeal, the respondent, through counsel, states that the "decision of the immigration judge denying [his section 212(c)] application ... in the exercise of discretion was neither founded upon standards which have been promulgated through regulation or adjudication, nor did the standards applied rest upon a permissible basis." The respondent submits that a wealth of precendential standards exist regarding the discretionary granting of section 212(c) relief, that the immigration judge made a "radical departure from the precedent decisions of this Board [by instead] employing the standards of Matter of Fernandez, supra, and Matter of Arai, supra," that he did so without citation or comment on the existing precedent decisions, that this departure "violated any standard for fair play, as well as due process," and that the factors actually relied upon by the immigration judge were impermissible.
We find no merit to this basis of appeal. The Board has not adopted an inflexible test for an immigration judge to use to determine as a conclusory matter whether section 212(c) relief should be granted as a matter of discretion. The undesirability and "difficulty, if not impossibility, of defining any standard in discretionary matters of this character which may be applied in a stereotyped manner" has long been recognized. See Matter of L----, 3 I. & N. Dec. 767 (BIA 1949; A.G.1949) (involving the seventh proviso to section 3 of the Act of 1917). Instead, it has been held that each case must be judged on its own merits. The immigration judge must balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of section 212(c) relief appears in the best interests of this country.
In order to provide the framework for an equitable application of discretionary relief, the Board has enunciated factors relevant to the issue of whether section 212(c) relief should be granted as a matter of discretion. Among the factors deemed adverse to a respondent's application have been the nature and underlying circumstances of the exclusion 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. See, for example, Matter of Carrasco, Interim Decision 2579 (BIA 1977), aff'd on other grounds, Carrasco-Favela v. INS, 563 F.2d 1220 (5 Cir.1977); Matter of Edwards, 10 I. & N. Dec. 506 (BIA 1963, 1964); Matter of M----, 3 I. & N. Dec. 804 (BIA 1949) (); Matter of V----, 1 I. & N. Dec. 293 (BIA 1942) (seventh proviso); Matter of G----, 1 I. & N. Dec. 8 (BIA 1940; A.G.1940) (seventh proviso).
Although in an individual case, one or more of these adverse factors may ultimately be determinative of whether section 212(c) relief is...
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