MATTER OF EDWARDS
A-18274740
Board of Immigration Appeals
May 2, 1990
Interim Decision #3134
In Deportation Proceedings
(2) A proper determination as to whether an alien has demonstrated unusual or outstanding equities in a section 212(c) application can only be made after a complete review of the favorable factors in his case, and, therefore, the use of the term “threshold test” is deemed to be inappropriate in this context, as it might be interpreted to imply that a full examination of an alien‘s equities can somehow be pretermitted. Matter of Buscemi, supra, clarified.
CHARGE:
Order: Act of 1952—Sec. 241(a)(11) [
ON BEHALF OF RESPONDENT:
Fernando Colon-Navarro, Esquire
Harvard Law Clinic
264 Third Street
Cambridge, Massachusetts 02142
ON BEHALF OF SERVICE:
Patricia B. Feeney
General Attorney
BY: Milhollan, Chairman; Dunne and Vacca, Board Members. Concurring Opinion: Morris, Board Member. Concurring in part and dissenting in part: Heilman, Board Member.
In a decision rendered on August 17, 1989, the immigration judge found the respondent deportable, based upon his admissions, on the charge set forth above, denied his application for a waiver of inadmissibility under
At the deportation hearing, the respondent testified that he began abusing controlled substances in 1977, and he intimated that this vice formed the basis of his criminal record. He indicated that while incarcerated during the 1979 to 1981 period, he attended weekly drug rehabilitation sessions. He related that after his release from prison, he managed to remain free from drugs for 3 1/2 years, but that he eventually began to use them again due to family, financial, and legal difficulties. The respondent advised that he sold heroin during 1986 solely to support his own drug habit. He stated that he participated in weekly drug counselling sessions while in prison as a result of his 1987 convictions. He further testified that subsequent to his release from prison, he continued to attend a treatment program on a weekly basis. The respondent conceded that he used heroin in approximately August 1988, and that he tested positive for morphine in November 1988. He indicated that before he was able to begin tri-weekly counselling sessions, as suggested by his parole officer, the Immigration and Naturalization Service issued a warrant for his arrest. He advised that he planned to return to a treatment program after his release from Service detention. The respondent said that he would not abuse controlled substances again because he did not want to hurt his family. In this regard, he also cited a fear of Acquired Immune Deficiency
With respect to his history of employment, the respondent advised that when he first came to this country, he worked in a nursing home for 10 years until 1977. He testified that his next job was as a taxicab driver, an occupation in which he remained for less than a year following his release from prison in 1981. He noted that he subsequently worked at a die casting company for 2 1/2 years until 1985, when he was injured in a job-related accident. He related that he received workmen‘s compensation for approximately 1 year. The respondent said that he was unemployed during the period leading up to his 1987 convictions, that he sold drugs during this time, and that his spouse supported him. He stated that upon his release from prison to a halfway house, he worked as a kiln operator until he was laid off, i.e., from December 1987 until August 1988. He declared that he then earned money as a self-employed worker in the demolition and cleaning industry. He observed that he planned to return to this occupation upon his release from Service detention.
The respondent implored that he be allowed to remain in the United States because of his family. He insisted that he would work hard to change his ways. He related that his wife and children, as well as his mother and siblings, resided here and that he knew no one in Barbados. He asserted that it would be very difficult for him to find employment in Barbados because of his age. He recounted that he had discussed the possibility of returning to Barbados with his wife, but that his family would be unable to accompany him because his children were in school and Barbados lacked special educational facilities for his autistic son.
In addition, the respondent offered the testimony of his wife on his behalf. She stated that she worked as a part-time aide at the school of her autistic son. She advised that she would not accompany her husband to Barbados as that country lacked the special educational facilities required for her autistic son. She related that the respondent was a good father and that he had changed for the better since his release from prison. She declared that she and her children had received public assistance since 1982, although her husband also had provided some support.
Besides testimony, a number of documents were entered into evidence. These documents include the case notes of the respondent‘s Massachusetts parole officer, covering the period from February 8, 1988, to January 26, 1989. There also is a letter from the Massachusetts Public Welfare Department, dated March 16, 1989, which describes the assistance given to the respondent‘s wife and children, and which opines that if the respondent is allowed to remain in this
In his decision, the immigration judge determined that the respondent was statutorily eligible for a
On appeal, the respondent argues that the immigration judge erred by failing to consider all of the favorable factors presented in his case. He asserts that he demonstrated unusual and outstanding equities. He further contends that the immigration judge should have allowed him to submit evidence regarding the nature and circumstances of his criminal convictions. He points out that his criminal record resulted from his need to support his drug habit rather than a desire to make profits. Moreover, he argues that the immigration judge placed undue weight on the factor of rehabilitation. He explains that, as a practical matter, the immigration judge based the denial of relief solely on the issue of whether he had been rehabilitated with respect to his controlled substance dependency. He indicates that it was improper to preclude relief on this basis because he was in Service detention and therefore was unable to enter a treatment facility, as had been previously arranged. Finally, the respondent contends that the immigration judge improperly relied on the parole officer‘s report.
For its part, the Service argues that the decision of the immigration judge is correct. It asserts, inter alia, that the respondent failed to make the requisite showing of unusual or outstanding equities.
The exercise of discretion in a particular case necessarily requires consideration of all the facts and circumstances involved. There must be a balancing of the social and humane considerations presented in an alien‘s favor against the adverse factors evidencing his undesirability as a permanent resident. Id. at 584. The Board has enunciated numerous factors to be considered in determining whether or not to grant
We also have pointed out that as the negative factors grow more serious, it becomes incumbent upon the alien to introduce additional offsetting favorable evidence, which in some cases may have to involve unusual or outstanding equities. Id. at 585. Such a heightened showing is required when an alien has been convicted of a serious drug offense, particularly one relating to the trafficking or sale of drugs. Id. at 586 n.4. The necessity of demonstrating unusual or outstanding equities is not exclusively triggered by serious crimes involving controlled substances, however. Rather, one must examine the gravity of the offense per se. Matter of Buscemi, 19 I&N Dec. 628, at 633 (BIA 1988); see also Matter of Marin, supra. In addition, such a showing may be mandated because of a single serious crime, or because of a succession of criminal acts which together establish a pattern of serious
With respect to the issue of rehabilitation, the Board noted in Matter of Marin, supra, at 588, and reiterated in Matter of Buscemi, supra, at 633-34, that a
In regard to the matter before us, we point out that we have reviewed the record on a de novo basis. Accordingly, the respondent has not suffered any prejudice due to the immigration judge‘s alleged errors in failing to consider all of the favorable evidence on his behalf or by placing an undue burden upon him regarding rehabilitation. Moreover, we observe that, for purposes of expediency, we have not relied on the report of the respondent‘s parole officer in rendering our decision. Consequently, we make no ruling as to the proper evidential weight which should have been accorded to the document or whether, in fact, it should have been accepted into evidence in the first instance.4
Additionally, while it is true that the immigration judge initially noted that he would not hear testimony as to the respondent‘s motivation for his crimes, the respondent ultimately was able to indicate for the record that he engaged in criminal conduct in order to support his drug habit. See Matter of M-, 3 I&N Dec. 804, 805 (BIA 1949) (matter involving the seventh proviso to section 3 of the Immigration Act of 1917) (while the Board will not go behind a record of conviction to reassess an alien‘s ultimate guilt or innocence, inquiry may be had into the circumstances surrounding the commission of the crime in order to determine whether a favorable exercise of discretion is warranted). Therefore, the respondent did not suffer prejudice. We also point out that, at the time the immigration judge rendered his interlocutory ruling, the respondent‘s counsel expressed agreement with it.
In analyzing the respondent‘s application for a
In the respondent‘s favor we take into account the fact that he has resided in this country for approximately 22 years. We note that he is married to a United States citizen, that he has four United States citizen children, that his mother and siblings reside in this country, and that he apparently has no family remaining in Barbados. We observe that the respondent‘s wife declared that he is a good father. We acknowledge that his family will suffer emotional hardship if he is deported to Barbados. We are aware of the special hardship that the respondent‘s autistic child may suffer from a separation. In sum, we conclude that these equities cumulatively rise to the level of the unusual or outstanding.
In regard to other alleged favorable equities forwarded by the
Turning to the issue of rehabilitation, we find it to be a significant factor in view of the nature and extent of the respondent‘s criminal history. Specifically, he has a record of offenses extending from 1977 until 1987, including convictions for controlled substance distribution. He attributed these crimes to his need to support his drug habit. While such a claim may tend to show that the respondent is not an inherently evil person, we still must consider the safety of our society. Regardless of the respondent‘s motivation, the community still will suffer the consequences of any future criminal behavior on his part.
At the hearing, the respondent promised that he would try to mend his ways. He renounced further controlled substance abuse because of the adverse effect on his family and because of the dangers to his own health. He participated in a number of treatment programs, including one at the time of his detention by the Service. Although the respondent appears to have been able to free himself from drugs for various periods of time, we note that he ultimately was unsuccessful in his quest. For example, we consider that while on parole and participating in a treatment program after his most recent period of incarceration, the respondent used controlled substances on at least two occasions, in August and November 1988. Consequently, on the record before us, we determine that he failed in his attempt to rehabilitate himself.
While it is unfortunate that the respondent apparently has not been able to participate in a controlled substance treatment program while in Service detention, we reject the respondent‘s suggestion that this fact bars a finding that he has not rehabilitated himself. See Matter of Marin, supra, at 588-89 (while it is more difficult for confined aliens to establish rehabilitation than those who are at liberty, this does not result in a violation of their constitutional rights). Further, we observe that the respondent was able to participate in a treatment program directly prior to his detention by the Service. However, he wasted this opportunity by continuing his use of controlled substances on at least two occasions during this period.
In balancing the various factors in the respondent‘s case, we take note of his favorable equities, which we found to be unusual or outstanding. However, when we weigh these equities against the
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
MATTER OF EDWARDS
James P. Morris, Board Member
I respectfully concur.
I fully concur with and join in the Board‘s order with respect to both its rationale and the result reached. However, I wish to elaborate on two points which apparently have caused some confusion in the application of our prior decisions.
The first point is the Board‘s position with respect to weighing the equities in the course of exercising its discretion regarding an applicant for relief under
In the hope of clarifying its position, the Board subsequently published its decision in Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988). There we pointed out that the fact that an alien has demonstrated unusual or outstanding equities does not compel a favorable exercise of discretion. Rather, we held that an alien with a serious criminal record who failed to make a showing of unusual or outstanding equities had not met a threshold test to be considered for relief under
Aside from the problem of pretermission of waiver requests, the use of the phrase “unusual or outstanding equities” causes some other difficulties. First, there is no need to determine whether or not the equity is unusual. It is the weight of the equity that is significant, not the frequency with which it may occur. Therefore, I would not treat the unusual nature of the equity as a significant factor. With regard to
The second area of confusion flowing from the Board‘s decisions in these cases involves the issue of rehabilitation. The Board‘s order points out that language used in Matter of Marin, supra, and Matter of Buscemi, supra, has been interpreted in some cases as though a clear showing of reformation is an absolute prerequisite to a favorable exercise of discretion in every case involving an alien with a criminal record. The Board then withdraws from the language in those cases to the extent that it may be read as creating an absolute prerequisite to a favorable exercise of discretion. I agree with the position the Board has taken in that regard in the present case. I would emphasize, however, that the issue is mostly one of proof. The alien may have a clear record since his conviction and may have taken positive steps to establish rehabilitation; yet, because of incarceration, the length of time since his conviction, or some other reason, he may be unable to establish convincingly that he has been rehabilitated. While such evidence would not carry the same weight as evidence demonstrating complete rehabilitation, his efforts may be considered, and he is not barred automatically from discretionary relief. On the other hand, if an alien has been convicted of a serious crime, and the evidence suggests that
In sum, I believe that it is the Board‘s purpose to provide guidance in the exercise of discretion in these areas but that it is not the Board‘s intention to provide a formula that should be rigidly followed.
MATTER OF EDWARDS
Michael J. Heilman, Board Member
I respectfully concur in part and dissent in part.
I agree with the major purpose and conclusion expressed in the majority opinion. There is one part of the opinion, however, that could easily sow more confusion and more difficulty. That is the part of the majority opinion that finds certain of the respondent‘s equities to “cumulatively” rise to the level of “unusual or outstanding.” It may well be that any attempt to formulate a method for exercising “discretion” is doomed to be either too broad or too narrow, and that rough formulas may be all one can devise. It seems to me, however, that in Matter of Marin, 16 I&N Dec. 581 (BIA 1978), as well as in Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988), it was fairly clear that the term “outstanding or unusual” equities was not itself confusing. The majority opinion does not attempt to clarify or explain that term.
Unfortunately, however, as a result of the majority opinion in this case, we may well find ourselves having to explain our use of the term in its application to the equities in this case. The majority uses that term in a manner not previously employed. It appears to find that a number of equities, some of which in themselves are in no sense “unusual or outstanding,” become so by an apparent mathematical operation. The declaration of the respondent‘s wife that he is a “good father” is surely evidence of a laudable quality. Likewise, the possibility that the family might suffer “emotional hardship” is a factor to be taken into account. But why these “equities” become equities of the highest quality is never explained, although the clear implication of the majority‘s discussion is that this occurs through the process of addition. It would thus appear that the majority is presenting the option to applicants to establish the existence of “unusual or outstanding” equities by presenting a certain number of
On its face, this optional approach presents some rather daunting problems. Initially, it implicitly abandons the approach taken in both Matter of Marin, supra, and Matter of Buscemi, supra, which seemed to require an identification of individual “unusual or outstanding” equities, in the absence of which an applicant could not overcome highly adverse factors. This approach at least had the virtue of an “objective” standard in judging equities, which would apply equally to a drug trafficker and an armed robber. For example, in most instances, it would allow one to consider 20 years of permanent residence an “outstanding” equity.
The “cumulative” approach, however, would allow one to determine that no individual “unusual or outstanding” equities existed, and then allow one to nonetheless grant the waiver because a certain number of more mundane equities were presented. To my knowledge, neither Matter of Marin, supra, nor Matter of Buscemi, supra, has been construed to provide this option.
In my estimation, this optional approach would in fact take us back to the situation which existed prior to the publication of Matter of Marin, supra. I would not do that and so do not join in that portion of the majority opinion.