Start v. I.N.S.

• Decision Date: 28 October 1986
• Docket Number: No. 85-7460,85-7460
• Citation: 803 F.2d 539
• Parties: Robert Garcia START, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 539

803 F.2d 539

Robert Garcia START, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 85-7460.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 15, 1986.

Decided Oct. 28, 1986.

Joel H. Golub, Antonio Bojorquez, San Francisco, Cal., for petitioner.

Susan Kamlet, Robert Kendall, Jr., Millicent Y. Clarke, Sp. Asst. U.S. Atty., Dept. of Justice, Washington, D.C., for respondent.

Appeal from the Board of Immigration Appeals.

Before CHOY, Senior Circuit Judge, KENNEDY and REINHARDT, Circuit Judges.

CHOY, Senior Circuit Judge:

Robert Garcia Start petitions for review of a decision by the Board of Immigration Appeals (BIA) denying his request for discretionary relief from deportation under the amended section 241(f)(1) of the Immigration and Nationality Act of 1952 (INA), 8 U.S.C. Sec. 1251(f)(1) (1982). We have jurisdiction under 8 U.S.C. Sec. 1105a(a), and we deny the petition.

I.

In 1979, Robert Start entered the United States as the unmarried son of a lawful permanent resident under section 203(a)(2) of the INA, 8 U.S.C. Sec. 1153(a)(2) (1982). However, at the time of entry he was in fact married to Marylou M. Quimbo. Moreover, after admission into the United States, Start married Quimbo a second time, in order to enable her and their children to obtain an immigrant visa.

Deportation proceedings against Start commenced on October 28, 1982. Start was formally charged with entering the United States by fraud. Start had claimed that he was the unmarried son of a lawful permanent resident when in fact he was married to Quimbo, in violation of section 212(a)(19) of the INA, 8 U.S.C. Sec. 1182(a)(19) (1982). He was also charged with entering without a valid labor certification or other valid entry document, in violation of sections 212(a)(14) and 212(a)(20), 8 U.S.C. Sec. 1182(a)(14) & (a)(20), respectively.

At the hearing, Start requested that his deportation be waived pursuant to section 241(f)(1) of the INA, 8 U.S.C. Sec. 1251(f)(1) (1982), in light of the fact that his father, mother, three brothers and two sisters are all either United States citizens or lawful permanent residents. Moreover, four days before his deportation hearing, Start was married to a United States citizen. After the hearing, a child was born to Start and his American wife.

Section 241(f)(1) affords the Attorney General discretion to waive the deportation of an alien who is the spouse or parent of a United States citizen, and was in the possession of an immigrant visa procured by fraud or misrepresentation. ¹ Prior to 1981, waiver under section 241(f) was mandatory, if the alien had the requisite family connection to the United States, and the fraud for which the alien was charged was of the type forgivable by the provision. See 8 U.S.C. Sec. 1251(f) (1976).

The immigration judge found Start deportable and denied waiver relief. The judge determined that Start's conduct, which included the "further" fraud of trying to procure an immigrant visa for his wife in the Philippines by marrying her a second time, warranted not invoking the forgiveness provision. The judge, however, characterizing Start's behavior as a "single lapse" of moral character, granted a request for voluntary departure.

Start appealed to the BIA, which affirmed the denial of the section 241(f)(1) waiver. The BIA based its decision on the adverse credibility finding regarding Start's contention of good faith, and the fact that Start "compounded [his fraud at entry] with a new instance of misrepresentation by participating in a second marriage ceremony, claiming it to be his first, and using it to attempt to immigrate his Filipino wife."

Start timely appeals the BIA's denial of the section 241(f)(1) waiver of deportation.

II.

The narrow question on this appeal concerns the exercise of discretion not to grant a waiver from deportation under section 241(f)(1) of the INA, 8 U.S.C. Sec. 1251(f)(1). Start does not contest the finding of deportability by the immigration judge and the BIA. Moreover, Start's eligibility for the waiver is not at issue. Both the immigration judge and the BIA explicitly concluded that Start met the requirements for relief under section 214(f)(1).

We review the BIA's decision not to invoke the forgiveness provision under the abuse of discretion standard. Hernandez-Robledo v. INS, 777 F.2d 536, 540 (9th Cir.1985). We note initially that the abuse of discretion standard leaves the BIA with much flexibility in exercising its judgment. See id. at 540-41 (affirming denial of section 241(f)(1) relief as "rational"); Dallo v. INS, 765 F.2d 581, 587 (6th Cir.1985) (noting "high level of discretionary authority" vested in Attorney General).

Start contends that because the waiver provision was intended to ensure that aliens would not be separated from family members lawfully in the United States, proof of substantial family connections in the United States was sufficient to compel the BIA to grant discretionary relief. We reject this argument.

In 1981, Congress amended section 241(f) to make the once mandatory waiver provision discretionary. See H.R.Rep. No. 264, 97th Cong., 1st Sess. 25, reprinted in 1981 U.S.Code Cong. & Admin.News 2577, 2593-94; see also Hernandez-Robledo, 777 F.2d at 540. The purpose of the amendment was neither to expand nor circumscribe the scope of the forgiveness provision. Rather, Congress was responding to the fact that "differing administrative and judicial interpretations have left the law in a state of confusion which makes it virtually impossible for the INS to uniformly administer section 241(f)." H.R.Rep. No. 264, 97th Cong., 1st Sess. 25, reprinted in 1981 U.S.Code Cong. & Admin.News 2577, 2594 (citation omitted). By clarifying the scope of the forgiveness provision and by making the waiver discretionary, Congress intended to "obviate the need for further litigation" and to "promote the uniform administration of this section." Id. To achieve these goals, this circuit has indicated that the BIA may refuse to exercise its discretion in favor of an alien who is statutorily eligible for relief and who would probably have qualified for the mandatory waiver of deportation prior to the recent amendment. See Hernandez-Robledo, 777 F.2d at 539-41. Thus, proof of family connections in the United States, while a necessary element in the determination of whether to grant waiver, is not solely dispositive of the issue. See, e.g., id. at 541 (finding BIA's denial of section 241(f)(1) waiver "rational" because deportation would not disrupt petitioner's primary family unit and because petitioner had been "recently convicted of a crime for which an alien can be excluded").

Start also argues that the BIA abused its discretion in finding that a second distinct instance of fraud justified denial of the waiver, when the immigration judge held that he had committed only one "single lapse" in moral character. He contends that because the instance of fraud for which an alien is charged should not be considered an adverse factor by the BIA, the "single lapse" for which he had been charged is insufficient to justify denial of the waiver.

The INS concedes that the underlying fraud for which Start is deportable should not constitute an adverse factor in determining whether to exercise discretionary waiver. See Hernandez-Robledo, 777 F.2d at 541 (discounting the fraud for which alien was charged). Nevertheless, the INS correctly argues that the BIA's denial of the waiver was justified on the basis of misrepresentations made by Start other than the fraud for which he was charged. These additional misrepresentations include: marrying his wife in the Philippines a second time in order to allow her and the children to immigrate into the United States, and possibly, marrying his wife for the sole purpose of getting her into the United States, i.e. with no intent to remain married.

Start argues that the immigration judge found that Start committed a single, continuous fraud, and that this finding should prevail as a matter of law over the BIA's conclusion that he committed multiple frauds. However, while the immigration judge characterized Start's behavior as a "single lapse of moral character," he did not conclude that Start committed a single fraud. Moreover, in light of the uncontested factual findings by both the BIA and the immigration judge concerning the scope of Start's fraudulent activities, we hold that the BIA did not abuse its discretion by concluding that Start committed multiple frauds.

Start additionally requests a remand to allow the BIA to consider his marriage to a United States citizen for over two years, and the fact that a child has been born to the couple since the initial deportation hearing. At the time of the initial deportation hearing, Start had been married to his present wife for only four days, a fact that the immigration judge did not consider in his favor. In affirming the denial of the section 241(f)(1) waiver, however, the BIA did consider the length of Start's marriage and the fact that he had had a child since the deportation hearing. After weighing this factor against adverse factors, the BIA concluded that denial of the waiver was appropriate. Because the BIA did consider these facts, no remand is necessary.

Finally, Start asks this court to re-evaluate the equities in this case, arguing that the BIA was in error in denying the favorable exercise of discretion. Other than the issue regarding his marriage to an American citizen and the birth of his child, Start does not contend that the BIA considered improper factors or ignored relevant equities in the exercise of discretion. This circuit has indicated that the BIA is required to consider all relevant evidence presented by the petitioner. See, e.g., Mattis v. INS, 774 F.2d 965, 968 (9th Cir.1985); Zavala-Bonilla v. INS, 730 F.2d 562, 568 (9th Cir.1984); Ramirez-Gonzalez v. INS, 695 F.2d 1208, 1211-12...