Tipu v. I.N.S.

• Decision Date: 05 April 1994
• Docket Number: No. 92-3657,92-3657
• Citation: 20 F.3d 580
• Parties: Mohammad Zafar TIPU, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 580

20 F.3d 580

Mohammad Zafar TIPU, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 92-3657.

United States Court of Appeals Third Circuit.

Argued June 24, 1993.

Decided April 5, 1994.

Ann A. Ruben, Richard D. Steel (Argued), Steel & Rudnick, Philadelphia, PA, for petitioner.

Stuart M. Gerson, Asst. Atty. Gen., David J. Kline, Asst. Director David V. Bernal (Argued), Carl H. McIntyre, Jr., U.S. Dept. of Justice, Office of Immigration Litigation, Washington, DC, for respondent.

Before: BECKER, ALITO and ROTH, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge:

In 1982 Mohammad Tipu was convicted on narcotics charges. As a result, the Immigration and Naturalization Service ("INS") is now seeking to deport him. At his deportation hearing, Tipu introduced evidence in his favor of his rehabilitation and of his seriously ill brother's dependence upon him. Nevertheless, an immigration judge denied Tipu special equitable relief from deportation under Sec. 212(c) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. Sec. 1182(c). The Board of Immigration Appeals ("BIA") affirmed the immigration judge's decision and ordered Tipu's deportation to Pakistan. Tipu appeals, challenging the BIA's decision as an abuse of discretion. As we conclude that the BIA failed to properly consider important factors in Tipu's favor, we will vacate the decision of the BIA and remand this case for further proceedings consistent with this opinion.

I.

Mohammed Zafar Tipu is a native and citizen of Pakistan. On February 25, 1971, at age 22, he entered the United States on a student visa. He became a lawful permanent resident alien on August 8, 1972. He has resided here continuously for twenty-three years and has been steadily employed, as an auto mechanic, a partner in a restaurant venture, the operator of a magazine stand, and a taxi driver. He has been the owner/operator of a taxi cab in Virginia since 1983. Tax forms submitted to the court show that Tipu has paid taxes on his wages. App. at 29-36.

Since 1973, Tipu has lived with his brother, Mohammad Arshad. In 1977, Arshad suffered complete kidney failure. Two attempted kidney transplants failed, and Arshad has to undergo dialysis treatment three times weekly. As Arshad's condition has become increasingly serious, he has come to rely upon Tipu for transportation to his dialysis sessions and for emotional and financial support. Although Arshad receives government disability benefits, Tipu apparently provides substantial support for Arshad, his wife and their two children.

On January 22, 1982, Tipu pled guilty to a charge of conspiracy to distribute heroin. He was sentenced to one year imprisonment, of which he served ten months. Tipu alleges that his role in the conspiracy was very minor, consisting solely of attending a dinner meeting at which the conspiracy was discussed by his older brothers, who were the conspirators. Tipu received the lightest sentence of the conspirators. No evidence was introduced to show that Tipu was ever involved in the use or sale of drugs prior to or after this conviction.

As a result of Tipu's conviction, the INS began deportation proceedings against him pursuant to 8 U.S.C. Sec. 1251(a)(11). In a June 4, 1986, hearing, Tipu conceded that he was deportable and applied for relief from deportation under the waiver of inadmissibility provision of Sec. 212(c) of the INA. At his hearing, Tipu submitted positive letters of support from his minister, from his probation officer, and from several personal acquaintances. The letter from Tipu's probation officer attested to Tipu's trustworthiness and to his crucial role in supporting his brother. The probation officer stated that "the conspiracy offense was in point of fact an aberration for this man." App. at 38.

Following the deportation hearing, the immigration judge denied Tipu's application for a Sec. 212(c) waiver and found Tipu deportable under 8 U.S.C. Sec. 1251(a)(11) because of his conviction. Tipu appealed to the BIA on June 9, 1986. Six years later, on August 3, 1992, the BIA affirmed the immigration judge's denial of a Sec. 212(c) waiver and dismissed Tipu's appeal. Tipu filed a timely petition for review and motion for stay of deportation with this Court. After a jurisdictional challenge to Tipu's appeal was resolved in his favor, a stay of deportation was granted on December 18, 1992, by a panel of this Court. This appeal followed.

II.

This Court has jurisdiction to review a final deportation order by the BIA pursuant to 8 U.S.C. Sec. 1105a(a)(1). The BIA's denial of a petition for a stay of deportation is reviewed under an abuse of discretion standard. Foti v. INS, 375 U.S. 217, 228 n. 15 (1963). Discretionary decisions of the BIA will not be disturbed unless they are found to be "arbitrary, irrational or contrary to law." So Chun Chung v. INS, 602 F.2d 608, 612 (3d Cir.1979); Marroquin-Manriquez v. INS, 699 F.2d 129, 133 (3d Cir.1983), cert. denied, 467 U.S. 1259, 104 S.Ct. 3553, 82 L.Ed.2d 855 (1984).

III.

Section 212(c) requires the Attorney General or her designate as a matter of discretion to determine whether to grant a waiver once statutory eligibility is established. Tipu's statutory eligibility for a Sec. 212(c) waiver is not disputed. ¹

Neither the language of the statute nor the relevant regulations establish criteria by which to weigh applications for discretionary relief from deportation. See 8 U.S.C 1182(c); 8 C.F.R. Sec. 213.3 (1990). However, the BIA has adopted a test that has been applied in such cases in order to "balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf." Matter of Marin, 16 I & N Dec. 581, 584 (BIA 1978). The balancing test enunciated in Marin and applied by the BIA in this case is as follows:

Favorable considerations have been found to include such factors as family ties within the United States, residence of long duration in this country (especially when the inception of residence occurred at a young age), evidence of hardship to the respondent and her family if deportation occurs, service in this country's armed forces, a history of employment, the existence of property or business ties, evidence of value and service to the community, proof of genuine rehabilitation if a criminal record exists, and other evidence attesting to a respondent's good character.

Among the factors deemed adverse to an alien are the nature of 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.

Matter of Marin, 16 I & N Dec. 581, 582-873 (BIA 1978). See also Matter of Roberts, Int. Dec. 314B (BIA May 1, 1991) Matter of Edwards, Int. Dec. 3134 (BIA May 2, 1990); Matter of Buscemi, 19 I & N Dec. 628 (BIA 1988).

The applicant bears the burden of demonstrating that he merits Sec. 212(c) relief from deportation. Matter of Marin, 16 I & N Dec. 581, 582-83 (BIA 1978). BIA case law has also established that just one of the adverse considerations may be determinative of whether Sec. 212(c) relief is granted and that an alien who has been convicted of a serious drug offense will usually be required to make a showing of unusual or outstanding equities in their favor in order to be considered for Sec. 212(c) relief. Matter of Buscemi, 19 I & N Dec. 628, 633 (BIA 1988).

In this Circuit, we have not dealt directly with the proper standard for determining whether the BIA has committed an abuse of discretion in denying a Sec. 212(c) waiver. However, in a similar context, involving applications for a discretionary stay of deportation, this Court has concluded that a decision of the BIA may be remanded if it fails adequately to consider the evidence in the record which favors an applicant. In Sotto v. INS, 748 F.2d 832 (3d Cir.1984), Sotto applied for a stay of deportation based on his fears of political persecution; the BIA affirmed the denial of his application, holding that Sotto did not substantiate his claims. The BIA's opinion failed, however, to discuss certain evidence in Sotto's favor, an affidavit by a former general stating that Sotto was on a wanted list in the Philippines as a result of his anti-Marcos political activities. This Court stated:

Although our review of the Board's findings is limited, and we may overturn the Board's determination of Sotto's claims only for abuse of discretion, we are not foreclosed from determining whether the Board followed proper procedures and considered and appraised the material evidence before it. If the administrative record fails to reveal that such evidence has been fairly considered, the proper course is to remand the case to the INS so that the Service may evaluate such evidence and consider its effect on the application as a whole.... [T]o determine whether the administrative action was arbitrary, the courts must be apprised why evidence, relevant and persuasive on its face, was discredited.

Id. at 837 (citations omitted).

We have also vacated a decision of the BIA which gave "insufficient consideration" to an important factor in favor of an application seeking a stay of deportation for reasons of family hardship. Bastidas v. INS, 609 F.2d 101, 105 (1979); see also Tovar v. INS, 612 F.2d 794 (3d Cir.1980). ² In Bastidas, we concluded that the BIA's decision did not reasonably reflect the evidence in the record of Bastidas's close ties with his family; we held that the decision of the BIA "will not be affirmed by this court unless the reasons for such a finding are made clear." 609 F.2d at 105.

Other circuits, which have reviewed denials of Sec. 212(c) waiver by the BIA, have...