Palmer v. I.N.S.

• Decision Date: 26 August 1993
• Docket Number: No. 92-2667,92-2667
• Citation: 4 F.3d 482
• Parties: William PALMER, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 482

4 F.3d 482

William PALMER, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 92-2667.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 28, 1993.

Decided Aug. 26, 1993.

Robert D. Ahlgren (argued), Ahlgren & Blumenfeld, Chicago, IL, for petitioner.

Fred Foreman, U.S. Atty., Office of U.S. Atty., Crim. Div., Chicago, IL, William J. Howard, David J. Kline, Dept. of Justice, Office of Immigration Litigation, Richard L. Thornburg, U.S. Atty. Gen., Washington, DC, A.D. Moyer, Samuel Der-Yeghiayan, I.N.S., Chicago, IL, Anne C. Arries (argued), U.S. Dept. of Justice, Civ. Div. Immigration Litigation, Washington, DC, for respondent.

Before RIPPLE and KANNE, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

KANNE, Circuit Judge.

William Palmer petitions for review of an order of the Board of Immigration Appeals (BIA) denying his applications for relief from deportation under Secs. 245 and 249 of the Immigration and Nationality Act, 8 U.S.C. Secs. 1255 and 1259. For the reasons set forth in this opinion, we deny the petition for review and affirm the decision of the BIA.

I.

Palmer, a native and citizen of Canada, was born in 1923. He unsuccessfully attempted to enter the United States in 1950 and again in 1951. The 1951 exclusion was based on his conviction in Canada for fraud ¹ as well as the failure to obtain a visa entitling him to immigrate. He returned to this country within a few days of being excluded in 1951 and, with the exception of two brief visits to Canada, has resided here since that time. In 1956, he married an American citizen; he has four children, all born in the United States. Palmer and his wife divorced in 1979. In March 1986, he pleaded guilty in Illinois criminal court to contributing to the sexual delinquency of a child, a misdemeanor under Ill.Rev.Stat. ch. 38, para. 11-5, ² and was sentenced to one year of probation and fined $1,000.

In April 1986, the Immigration and Naturalization Service (INS) issued an order to show cause charging Palmer with being deportable because he had entered the United States without a valid immigrant visa. Sections 212(a)(20) and 241(a)(1), 8 U.S.C. Secs. 1182(a)(20), 1251(a)(1). In May 1987, the INS filed a second charge of deportability on the ground that, in 1951, Palmer had sought (and achieved) admission to the country without the Attorney General's permission within one year of having been excluded. Section 212(a)(16), 8 U.S.C. Sec. 1182(a)(16). ³ During deportation proceedings before the immigration judge (IJ), Palmer admitted the factual allegations in both show cause orders and conceded deportability on both charges.

In an effort to escape deportation, Palmer then sought relief from the IJ under Secs. 245 and 249 of the INA, 8 U.S.C. Secs. 1255 and 1259. Section 245(a) provides that the Attorney General may, in her discretion, adjust the status of an alien inspected and admitted or paroled into the United States to that of an alien lawfully admitted for permanent residence if: (1) the alien applies for such adjustment, (2) he is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. ⁴ An alien in Palmer's position, that is, subject to deportation proceedings, may apply to the IJ for adjustment of status. See 8 C.F.R. Sec. 242.17(a); Matter of Alarcon, --- I. & N. Dec. ----, Int. Dec. 3184 (BIA 1992). See also Patel, 811 F.2d at 379. An alien seeking to adjust his status to that of a lawful permanent resident is assimilated to the position of an applicant for entry into the United States. Pei-Chi Tien v. INS, 638 F.2d 1324, 1326 (5th Cir.1981); Yui Sing Tse v. INS, 596 F.2d 831, 834 (9th Cir.1979); Matter of Alarcon, --- I. & N. Dec. at ----, Int.Dec. 3184; Matter of Hernandez-Puente, --- I. & N. Dec. ----, Int.Dec. 3135 (BIA 1991).

The IJ found that a visa was available to Palmer, based on an immediate relative petition filed by his son, and that Palmer had been inspected at the time of his last entry into the United States (sometime in 1981 or 1982). The sole remaining issue was whether Palmer was "admissible to the United States for permanent residence," 8 U.S.C. Sec. 1255(a), in light of the stricture contained in Sec. 212(a)(9), 8 U.S.C. Sec. 1182(a)(9). ⁵ Under Sec. 212(a)(9), an alien who has been convicted of a crime involving moral turpitude "shall be ineligible to receive [a] visa[ ] and shall be excluded from admission into the United States." Palmer was convicted of two such crimes: the 1951 fraud conviction, ⁶ and the 1986 conviction for contributing to the sexual delinquency of a child. ⁷

Consequently, in order to remain eligible for adjustment of status, Palmer had to seek a waiver of inadmissibility from the IJ under Sec. 212(h) of the INA, 8 U.S.C. Sec. 1182(h). ⁸ At the time of the hearing before the IJ, Sec. 212(h) provided that the Attorney General may, in her discretion, waive inadmissibility under Sec. 212(a)(9) for any alien who was the spouse or parent of a United States citizen, if (1) the alien established that his exclusion "would result in extreme hardship" to the United States citizen spouse or child, and (2) the alien's admission would not be contrary to the national welfare, safety, and security of the United States. See Matter of Ngai, 19 I. & N. Dec. 245, 247 (Comm.1984) (a waiver of inadmissibility as a result of Sec. 212(a)(9) depends first upon a showing that the bar to admission imposes an extreme hardship on a qualifying family member). ⁹ In August 1987, the IJ granted both the Sec. 212(h) waiver and Palmer's application for adjustment of status under Sec. 245. ¹⁰ As a result, the IJ did not reach Palmer's request for relief under Sec. 249.

The INS appealed to the BIA. In an opinion and order issued in May 1992, the BIA reversed the IJ's decision, holding that Palmer had not established "extreme hardship" within the meaning of Sec. 212(h), and did not merit relief under either Sec. 245 or Sec. 249 in the exercise of the Attorney General's discretion. The opinion begins by reviewing recent changes to Sec. 212(h) under the Immigration Act of 1990 as well the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub.L. 102-232, 105 Stat. 1733 (1991). The BIA determined that, under the amended version of Sec. 212(h), Palmer was still required to demonstrate his eligibility for a favorable exercise of the Attorney General's discretion by establishing that his children would suffer extreme hardship if he were deported. See 8 U.S.C. Sec. 1182(h)(1)(B). ¹¹

Turning to the merits, the BIA held that Palmer had failed to establish this statutory element. It noted that Palmer's children had submitted affidavits attesting to their close relationship with their father, but found the children to be self-sufficient adults, ranging in age from 27-34 years. In particular, Palmer's son had held the same job for the last five years and earns an annual salary of $30,000. Three of the children are married and have children of their own. While separation from their father may cause the children emotional hardship, the BIA concluded that this did not amount to extreme hardship under Sec. 212(h).

The BIA went on to conclude that Palmer would not otherwise merit a Sec. 212(h) waiver in the exercise of discretion. In Palmer's favor, the BIA considered his residence of forty years in the United States, his stable employment history, and his regular payment of taxes. However, in the BIA's view, these factors did not overcome Palmer's 1986 conviction for contributing to the sexual delinquency of a child. The BIA noted that, at his deportation hearing before the IJ, Palmer explained that he had been accused by a former girlfriend of fondling her six-year old daughter after he had refused to give the woman money to buy a home. Palmer decided to plead guilty to the misdemeanor charge in order to avoid adverse publicity that could damage his business and his family. The BIA held, however, that Palmer could not use the circumstances surrounding the charge to impeach an otherwise valid conviction. In light of "the recency and the serious nature" of the crime, the BIA stated that it would decline to exercise its discretion favorably under Sec. 212(h), and denied Palmer's application for adjustment of status.

The BIA next considered Palmer's application for admission or "registry" under Sec. 249, 8 U.S.C. Sec. 1259. This provision permits the Attorney General, in her discretion, to establish a record of lawful admission for an alien who has been present in the United States for a prescribed period of time, making the individual eligible to remain in the country. See Rodriguez-Barajas v. INS, 992 F.2d 94, 97 (7th Cir.1993); De Lucia, 370 F.2d at 307-08. The alien "shall satisfy the Attorney General that he is not inadmissible under section 212(a) ... insofar as it relates to criminals, procurers and other immoral persons," and must establish that he entered the United States before January 1, 1972, has made this nation his residence continuously since then, is of good moral character, and is eligible for citizenship. The BIA concluded that, for the reasons Palmer did not merit discretionary relief under Sec. 212(h), he would not be granted discretionary relief under Sec. 249. The BIA did, however, find that Palmer was statutorily eligible for voluntary departure under Sec. 244(e) of the INA, 8 U.S.C. Sec. 1254(e), and granted him such in the exercise of discretion.

Palmer filed a timely petition for review of the BIA's decision. We have jurisdiction under Sec. 106(a) of the INA, 8 U.S.C. Sec. 1105a(a). Oviawe v. INS, 853 F.2d 1428, 1430 (7th Cir.1988).

II.

The BIA's determination that Palmer failed to demonstrate his children would suffer extreme hardship if he were deported is reviewed for abuse of discretion. Hassan v. INS, ...