Yepes-Prado v. U.S. I.N.S.

• Decision Date: 12 November 1993
• Docket Number: YEPES-PRAD,P,No. 91-70114,91-70114
• Parties: Rigobertoetitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1363

10 F.3d 1363

Rigoberto YEPES-PRADO, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 91-70114.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 14, 1992.

Decided Oct. 8, 1993.

As Amended Nov. 12, 1993.

John E. Ricci, Charles E. Nichol, San Francisco, CA, for petitioner.

Martin Resendez Guajardo, San Francisco, CA, substituted as counsel for petitioner.

Carl H. McIntyre, U.S. Dept. of Justice, Washington, DC, for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service.

Before: FERGUSON, REINHARDT, and KOZINSKI, Circuit Judges.

REINHARDT, Circuit Judge:

I. Factual and Procedural Background

Rigoberto Yepes-Prado is a thirty-eight-year-old individual who was lawfully admitted to the United States as a permanent resident on November 29, 1974. He has lived here since that date and has maintained steady employment. On April 14, 1984, he was arrested for possession of 14.25 grams of heroin with intent to distribute in violation of California law. He was convicted of that charge on January 15, 1986 and sentenced to one year in the county jail and two years probation. Nothing in the record suggests that Yepes-Prado has ever been arrested for, let alone convicted of, any other criminal offense since he arrived in the United States almost twenty years ago.

On the basis of the 1986 drug conviction, the Immigration and Naturalization Service ("INS") ordered Yepes-Prado to show cause why he should not be deported under section 241 as an alien who has been convicted of a violation of a law relating to a controlled substance. 8 U.S.C. Sec. 1251(a)(11) (1988). ¹ Yepes-Prado conceded that he was eligible for deportation, but sought a discretionary waiver under section 212(c). 8 U.S.C. Sec. 1182(c). Although an immigration judge ("IJ") found that several equities weighed in Yepes-Prado's favor, he denied the waiver. Yepes-Prado then appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). The BIA found that Yepes-Prado had "outstanding equities" and was eligible for relief, but found no error in the IJ's decision. Yepes-Prado's petition for review of the BIA's decision is now before us. We have jurisdiction under 8 U.S.C. section 1105a. We vacate and remand.

II. The Nature of 212(c) Relief

Section 212(c) of the Immigration and Naturalization Act allows the Attorney General to grant discretionary relief from deportation or exclusion to lawful permanent residents who, like Yepes-Prado, meet the provision's seven-year residency requirement. ² The INS' regulations first delegate the authority to make section 212(c) decisions to the Executive Office of Immigration Review and the BIA. 8 C.F.R. Secs. 3.0, 3.1(a)(1) & (d)(1) (1993). They then refer responsibility over 212(c) determinations to IJs and give appellate jurisdiction over those decisions to the BIA. Sec. 3.1(b)(3). ³ In exercising his responsibility, an IJ must determine whether to grant section 212(c) relief based on all the facts and circumstances of a particular case, taking into account the social and humane considerations presented in an applicant's favor and balancing them against the adverse factors that evidence the applicant's undesirability as a permanent resident. In re Edwards, Interim Decision No. 3134, 1990 WL 385757, 1990 BIA Lexis 8, * 9.

The BIA has enumerated several factors to be considered in determining whether or not to grant a section 212(c) petition. Favorable considerations include: 1) family ties within the United States; 2) residence of long duration in this country (particularly when residence began at a young age); 3) hardship to the petitioner or petitioner's family if relief is not granted; 4) service in the United States armed forces; 5) a history of employment; 6) the existence of business or property ties; 7) evidence of value and service to the community; 8) proof of rehabilitation if a criminal record exists; 9) other evidence attesting to good character. Id. 1990 wl 38575, 1990 BIA LEXIS 8, at 10 -11. To be weighed against these factors are 1) the nature and underlying circumstances of the exclusion or deportation ground at issue; 2) additional violations of the immigration laws; 3) the existence, seriousness, and recency of any criminal record; 4) other evidence of bad character or the undesirability of the applicant as a permanent resident. Id. 1990 wl 38575, 1990 BIA LEXIS 8, at 11. Where a 212(c) petitioner has committed a particularly grave criminal offense, he must make a heightened showing that his case presents unusual or outstanding equities to warrant discretionary relief. Id. 1990 wl 38575, 1990 BIA LEXIS 8, at 11 -12. However, there are cases in which the adverse considerations are so serious that a favorable exercise is not warranted even in the face of unusual or outstanding equities. Id. 1990 wl 38575, 1990 BIA LEXIS 8, at 12.

III. The Scope and Standard of Review

The BIA has the power to review the factual and legal basis of an IJ's 212(c) decision de novo. Charlesworth v. INS, 966 F.2d 1323, 1325 (9th Cir.1992). However, our review is more circumscribed. We review agency fact-finding to see if it is supported by substantial evidence, Martinez v. INS, 970 F.2d 973, 974 (1st Cir.1992), and the balancing of the equities underlying a 212(c) determination for an abuse of discretion. Vargas v. INS, 831 F.2d 906, 908 (9th Cir.1987). We also review agency decisions for errors of law. Moreover, an error of law also constitutes an abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2460-61, 110 L.Ed.2d 359 (1990).

The agency abuses its discretion if it fails to state its reasons and show proper consideration of all factors when weighing equities and denying relief. Cerrillo-Perez v. INS, 809 F.2d 1419, 1422 (9th Cir.1987). A denial of relief may be affirmed only on the basis articulated in the agency's decision and we cannot assume that the INS considered factors that it failed to mention. Mattis v. INS, 774 F.2d 965, 967 (9th Cir.1985). Moreover, the inclusion of an improper factor in reaching a discretionary decision is ordinarily grounds for remand. Braun v. INS, 992 F.2d 1016, 1021 (9th Cir.1993); Je Hung Ng v. INS, 804 F.2d 534, 538-39 (9th Cir.1986).

As an initial matter, the parties disagree as to the decision that we should review in this case. Yepes-Prado argues that we should look primarily to the ruling of the IJ. The INS contends that our examination should be confined to the BIA's opinion. The government correctly states the general rule that where the BIA engages in de novo review of the IJ's factual and legal determinations, we consider only the decision of the BIA because any errors made by the IJ will be rendered harmless. See Elnager v. INS, 930 F.2d 784, 787 (9th Cir.1991); Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir.1988). However, that principle is not dispositive here because the BIA did not engage in de novo review of the IJ's decision. The BIA stated that the question raised by Yepes-Prado's appeal was whether the IJ had abused his discretion in denying him relief. After reviewing the IJ's decision and Yepes-Prado's equities, the BIA upheld the IJ's determination because it could not state that the IJ's "decision to deny 212(c) relief in the exercise of discretion was error, as a matter of law." ⁴ Nowhere did the BIA state that it was subjecting the IJ's decision to de novo review, that is was conducting its own examination of the record, or, most important, that it was exercising discretion independently. Cf. In Re Coelho, Interim Decision No. 3172, 1992 WL 195806, 1992 BIA Lexis 7; Edwards, 1990 WL 385757, 1990 BIA Lexis 8 at * 13.

As the Seventh Circuit recently stated, there is a significant difference between the BIA's evaluation of an IJ's 212(c) determination under the abuse of discretion standard and its performance of a de novo review. Ortiz-Salas v. INS, 992 F.2d 105, 108 (7th Cir.1993). In the latter situation the BIA makes an independent judgment as to whether it agrees with the IJ's balancing of the equities and determines, in the exercise of its own discretion, whether to reach the same result. ⁵ See id. In contrast, when the BIA reviews for an abuse of discretion it accepts determinations with which it may well not agree, as well as results it might not have reached. Id.; see also Steven Alan Childress & Martha S. Davis, Federal Standards of Review, Sec. 15.02 at 15-2 through 15-3 (2d ed. 1992) (characterizing de novo review as agreement review with no tolerance for error and review for abuse of discretion as review for a possibly correct decision with a high tolerance for risk of error). The distinction is not merely formalistic. Where the BIA reviews an IJ decision regarding 212(c) relief de novo, it is the Board that makes the discretionary judgment to grant or deny relief. Where the BIA's review is for an abuse of discretion, the decision is left to the IJ, subject to only limited oversight. See Ortiz-Salas, 992 F.2d at 108.

As stated earlier, we review the ultimate determination whether to grant 212(c) relief under an abuse of discretion standard. We do so because it is the Attorney General, not the federal courts, that is charged with making the decision whether to grant a petitioner relief from deportation or exclusion. The type of review the BIA performs should similarly reflect a prior agency determination as to where the decisionmaking authority regarding 212(c) cases is located within the Executive Office for Immigration Review. It appears, however, that the BIA has no fixed situs for the basic discretionary determination and thus no fixed standard for reviewing decisions by IJs on 212(c) applications. Ortiz-Salas, 992 F.2d at 107. We agree with Judge Posner that it is "irresponsible" of the BIA not to have defined the proper allocation of discretionary authority over 212(c) petitions and instead to require...