Manuel Canales-Lopez v. Immigration and Naturalization ServiceManuel Canales-Lopez v. Immigration and Naturalization Service
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
Manuel CANALES-LOPEZ, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 95-2113.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 13, 1995.
Decided Jan. 17, 1996.
Before ESCHBACH, COFFEY and EVANS, Circuit Judges.
ORDER
Manuel Canales-Lopez appeals the decision by the Board of Immigration Appeals of the Immigration and Naturalization Service (BIA) to deny his petition for waiver of deportation. Canales conceded that he was deportable because of a drug-related offense conviction in February, 1994. See 8 U.S.C. §§ 1251(a)(2)(A)(iii) (aggravated felony) and 1251(a)(2)(B)(i) (controlled substance). On appeal, he contends that the BIA abused its discretion by refusing his application for waiver of deportation.
I.
Canales is a 37 year old native and citizen of Mexico who has been living in Dallas, Texas since 1978 when he was 18 years old. He has almost always had a job, mostly in construction, and has never claimed worker's compensation, unemployment assistance, or public assistance. He became a permanent resident in 1982 through his marriage to Reyes Villarreal. The couple had one child in 1983, Manuel Canales, and divorced several years later. Canales maintained a close relationship with his son, seeing him almost daily, and volunteered (without legal obligation) substantial amounts of money to his ex-wife as child support. Canales also has four siblings living in the United States, three in Texas and one in Illinois. Since being incarcerated, Canales has maintained ties with his son, talking to him on the phone, and writing to him. His son visited Canales in prison on one occasion, and his sister and her children visited Manuel in Texas.
Canales was arrested while driving from Texas to Chicago, Illinois. He drove with a friend, Juan Rodriguez, in a car owned by another friend, Pedro Alfaro. Canales had driven to Chicago to visit his sister before, but this was the first time he had borrowed Alfaro's car. The police stopped Canales in Illinois for speeding, searched the car, and found thirty seven pounds of marijuana in the gasoline tank. Canales was released on bond pending the disposition of his case and returned to Texas. He then came back to Illinois and pleaded guilty to cannabis trafficking. That conviction was later modified upon a motion by the state's attorney's office to possession of cannabis, and Canales was sentenced to six years imprisonment. However, upon a modification of Canales' guilty plea in July, 1994, his sentence was amended to four years imprisonment. Canales was released on furlough for two weeks before his sentence began, and then returned to begin serving his sentence.
Prior to his arrest, Canales had never used, sold, or was involved in any way with illegal drugs. He also had no other convictions in the United States. In prison, he has had no disciplinary tickets, attends school three hours per day from Monday to Friday, participates in running races, practices music, and joined a narcotics anonymous group to keep busy and because he considered it worthwhile.
The INS sought to deport Canales based on his state court conviction. Canales admitted that he was deportable but requested waiver under § 212. He testified at the Immigration Hearing that his deportation would cause a hardship on himself and his son, and cited strong factors in favor of waiver. Canales also explained that he pleaded guilty upon the advice of counsel even though he did not know that there was marijuana in the gasoline tank in order to avoid a long term of imprisonment.1 The Immigration Judge (IJ) denied Canales' request for waiver, and Canales appealed to the BIA.
The BIA reviewed the IJ's determination de novo, see Guillen-Garcia v. Immigration and Naturalization Service,
II.
The grant or denial of a § 212(c) waiver lies within the BIA's discretion and our review of its decisions is "limited to whether the discretion was actually exercised and whether it was exercised in an arbitrary or capricious manner." Akinyemi v. INS,
In exercising its discretion under § 212(c), the BIA must balance "the social and humane considerations in the alien's favor against any adverse factors that demonstrate his or her undesirability as a permanent resident in the United States." Henry,
The BIA properly rejected Canales' testimony regarding his lack of knowledge of the marijuana in the gasoline tank. Neither the IJ nor the BIA may consider evidence raised during a deportation hearing that attempts to collaterally attack an otherwise valid state court conviction. Palmer v. I.N.S.,
However, the mere fact that Canales' testimony was not credible cannot be the sole basis for denial of waiver. Guillen-Garcia v. INS,
Guillen-Garcia I is applicable and determinative in this case. The I.N.S. argues that the BIA's denial of Canales's application is based on the BIA's finding that Canales's testimony regarding his conviction lacked credibility. The BIA Decision makes clear, however, that this argument is just another way of saying that Canales refused to acknowledge guilt; it is not a separate factor that weighs against his unusual and outstanding equities. That the BIA's opinion did not frame the issue as one of credibility is further evidence that "credibility" was a euphemism for "failure to acknowledge guilt." The BIA Decision simply stated that "we remain troubled by the respondent's inability to acknowledge guilt for the offense." BIA Decision at 3. The IJ's reaction to Canales's petition is additional evidence that the sole issue was whether Canales acknowledged guilt. The BIA Decision stated that the IJ "noted that the respondent's inability to acknowledge guilt for his crime diminished his otherwise impressive evidence of rehabilitation." BIA Decision at 2 (emphasis added).
Here, the Board based its denial of waiver on Canales' refusal to acknowledge his guilt: he testified that he did not know that there was marijuana in the gasoline tank, he moved to modify, not vacate, his guilty plea, and he joined a narcotics anonymous group in prison. The Board considered these latter two acts as inconsistent with the actions of an innocent man. Nonetheless, the tenor of the BIA's opinion demonstrates that the overriding concern was Canales' testimony at the immigration hearing. A petitioner's denial of guilt before the IJ may be a factor to be considered by the BIA under Marin in exercising its discretion to grant waiver, but it cannot be the overriding concern.
In a related point, we note with concern that the BIA never addressed the standard against which it judged Canales. Particularly serious adverse factors, such as a conviction for drug trafficking or the sale of drugs, may require a heightened showing of unusual or outstanding equities. Espinoza v. INS,
We therefore are troubled by the BIA's failure to address the standard by which it judged Canales. The BIA found that Canales' crime was serious and that Canales had demonstrated outstanding equities to merit waiver. However, it found Canales' equitable factors were insufficient to grant waiver in light of Canales' refusal to acknowledge his guilt. If Canales faced a lower standard of demonstration, then perhaps Canales' denial of his guilt would not loom so large in the Board's consideration. Nonetheless, because the BIA overemphasized Canales' testimony in violation of Guillen-Garcia I, we GRANT Canales' petition for review and REMAND for further review.
Notes
Under the original charges, he faced term of imprisonment not less than twice the minimum term and fine, but not more than twice the maximum term and fine. See Ill.Rev.Stat. ch. 720, para. 550/5.1 (Smith-Hurd 1995)