Varela-Blanco v. I.N.S., VARELA-BLANC

• Decision Date: 10 March 1994
• Docket Number: No. 93-2265,VARELA-BLANC,P,93-2265
• Citation: 18 F.3d 584
• Parties: Juan Franciscoetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 584

18 F.3d 584

Juan Francisco VARELA-BLANCO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 93-2265.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 14, 1994.

Decided March 10, 1994.

Before BOWMAN and WOLLMAN, Circuit Judges, and ALSOP, ^* Senior District Judge.

PER CURIAM.

Juan Francisco Varela-Blanco ("Varela"), a native and citizen of Mexico, appeals from a decision of the Board of Immigration Appeals (the "Board") denying his application for a waiver from deportation pursuant to section 212(c) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. Sec. 1182(c), and ordering him deported to Mexico. We affirm.

I.

Varela, forty-eight years old, entered the United States along with his family in 1975 by using a border-crossing card that required him to stay within twenty-five miles of the border. Ignoring the twenty-five mile limit, Varela and his family moved to Muscatine, Iowa, where Mrs. Varela's family resided. Upon arriving in Iowa, Varela began working for the HON Company, at which he continued to work for thirteen years. On April 3, 1985, Varela was admitted to the United States as a lawful permanent resident.

In March 1989, Varela was arrested for sexually abusing his eight-year-old niece on several occasions. He pled guilty in Iowa state court on May 26, 1989, to committing lascivious acts with a child and was sentenced to five years in prison.

On September 28, 1989, the Immigration and Naturalization Service issued an Order to Show Cause, charging Varela with being deportable under section 241(a)(4) of the Act, 8 U.S.C. Sec. 1251(a)(4). ¹ At his deportation hearing, Varela conceded that he was deportable, but applied for a waiver from deportation under section 212(c). The immigration judge granted the section 212(c) waiver. By a two-to-one vote the Board reversed the judge's grant of the waiver, however, and ordered Varela deported to Mexico. Varela appeals.

II.

Pursuant to section 212(c) of the Act, the Board may waive the deportation of an alien who has been a lawful permanent resident for seven years and who is being deported for certain specified reasons, including a criminal conviction. Espinoza v. INS, 991 F.2d 1294, 1297 (7th Cir.1993); see Francis v. INS, 532 F.2d 268, 270-73 (2d Cir.1976) (discussing the interpretation of section 212(c)); Matter of Silva, 16 I. & N. Dec. 26 (BIA 1976) (same). Section 212(c), however, does not automatically provide a waiver for all who are eligible for such relief. Cordoba-Chaves v. INS, 946 F.2d 1244, 1247 (7th Cir.1991); Matter of Coelho, Interim Dec. 3172, slip op. at 5 (BIA Apr. 30, 1992). Rather, a section 212(c) waiver of deportation is within the Board's discretion, and the alien bears the burden of establishing that his application merits favorable consideration. Cordoba-Chaves, 946 F.2d at 1247; Matter of Coelho, slip op. at 5.

In exercising its discretion, the Board balances the social and humane considerations presented in the alien's favor against any adverse factors evidencing his undesirability as a permanent resident. Espinoza, 991 F.2d at 1297; Matter of Coelho, slip op. at 5. The Board has stated that the following factors are favorable considerations: (1) family ties within the United States; (2) residence of long duration in this country; (3) evidence of hardship to the alien and his family if deportation occurs; (4) service in this country's armed forces; (5) a history of employment; (6) the existence of property or business ties; (7) evidence of value and service to the community; (8) proof of genuine rehabilitation if a criminal record exists; and (9) other evidence attesting to an alien's good character. Espinoza, 991 F.2d at 1297; Matter of Coelho, slip op. at 5.

On the other hand, the Board has listed the following considerations as adverse factors: (1) the nature and underlying circumstances of the deportation ground at issue; (2) any additional significant violations of this country's immigration laws; (3) the existence of a criminal record and, if so, its nature, recency, and seriousness; and (4) other evidence of bad character or undesirability as a permanent resident. Espinoza, 991 F.2d at 1297; Matter of Coelho, slip op. at 5. One or more of these adverse factors may ultimately be determinative of whether relief should be granted under section 212(c). Espinoza, 991 F.2d at 1297; Matter of Coelho, slip op. at 5.

If an alien is being deported for committing a serious crime, he may be required to introduce a heightened level of favorable evidence, demonstrating unusual or outstanding equities. Espinoza, 991 F.2d at 1297; Matter of Coelho, slip op. at 6. As stated above, Varela was convicted for having had sexual contact with his young niece on multiple occasions. The Board found that the seriousness of Varela's criminal acts required that he demonstrate unusual or outstanding equities. Varela does not challenge this finding.

In examining Varela's favorable factors, the Board first considered the duration of his residence. The Board noted that Varela had lawfully resided in the United States for eight years, only one more year than the seven years necessary to be eligible for a section 212(c) waiver. The Board acknowledged that Varela had resided unlawfully in this country for ten years before becoming a legal resident. The Board stated, however, that it would not consider Varela's years of illegal residence on par with his years of legal residence. Consequently, the Board concluded that although it considered eighteen years of residence a favorable factor, because Varela had been a lawful resident for only eight of those years it did not consider his duration of residence an unusual or outstanding equity.

With respect to Varela's employment history, the Board observed that prior to his incarceration Varela had been employed by one company for thirteen years and that after his imprisonment he had immediately found employment. The Board stated, however, that it would not consider Varela's years of employment prior to his admission as a lawful resident because he had not been authorized to work in the United States at that time. The Board concluded that although his employment history was favorable, it was not unusual or outstanding.

As for Varela's family ties to the United States, the Board noted that he had family here and found that this was a favorable factor, but not an usual or outstanding factor. The Board also found that neither Varela nor his family would suffer unusual or outstanding hardship if he were deported. Although his family would suffer emotional hardship, the Board found that they would be able to support themselves in the United States and that he would be employable in Mexico.

In the final part of its analysis, the Board observed that Varela had presented considerable evidence of rehabilitation, but found that such evidence did not rise to the level of an unusual or outstanding equity. The Board further observed that Varela had presented no evidence that he had served in the armed forces, had been substantially involved in the community, or owned property in the United States. The Board concluded by stating that "[u]pon review of all favorable factors of record, we do not find that they rise to the level of unusual or outstanding equities." The Board therefore reversed the immigration judge's grant of the waiver from deportation.

III.

The Board's decision to deny Varela's application for a section 212(c) waiver was discretionary, and we therefore review it for abuse of discretion. Rodriguez-Rivera v. INS, 993 F.2d 169,...