*1 Strickland, 104 S.Ct. gy.” 466 U.S. court that its to inform the require counsel disregarded. The addi- had been instruction an article paper contained fact that tional allegations raised find that the other We trial about the information
with inaccurate will, merit.4 We petition are without testimony unquestionably client’s and his therefore, of the writ and the denial vacate alert the court about compelled counsel district court to the matter to the remand finding, it activity. such a juror Absent evidentiary hearing. conduct employ counsel failed appear that would clearly beneath that is strategy, a failure any
practice norms. damaging article jurors had read
If the reporting Weatherwax’s its distorted with resulting taint testimony, likelihood apparent. trial is Strick- the fairness would also be met. prong land's second Petitioner, TIPU, Zafar Mohammad sup finding prejudice is also A Prejudice holding in Resko. ported by our juror presumed; but when should not be & NATURALIZATION IMMIGRATION the trial court’s coupled with
misconduct SERVICE, Respondent. dire to determine failure to hold a voir 92-3657. No. jury func on the outcome of the misconduct tion, prejudice is excused proof of actual Appeals, United States Court F.3d at 695. We a new trial is warranted. Third Circuit. appeal of a recognize that Resko was a direct directly Argued June and thus is not criminal conviction here, presents a Weatherwax applicable but April Decided than Resko: here stronger prejudice case for inflammatory infor to review we are able article,
mation, newspaper to which and, exposed as we have jury have been determined, inaccuracy clearly fa already prosecution. vored the
VI. allegations, supported Given Weatherwax’s exhibits, the district by his affidavits and evidentiary holding an court in not erred the truth of Weather- hearing to determine juror brought that a wax’s assertions juryroom newspaper coun- into this situation had oc- informed that sel was true, out a If has made curred. Weatherwax prima of ineffective assistance of facie case standard. The
counsel under the Strickland , op- then be afforded the government must portunity question counsel Weatherwax’s request the voir dire
relative to his failure show, applicable, if that counsel order to proceeded on of “sound trial strate- the basis supra
4. See *2 Ruben, (Argued),
Ann A. Richard D. Steel Rudnick, PA, Philadelphia, peti- & Steel tioner. Gerson,'Asst. Gen., Atty.
Stúart M. David (Ar- Kline, J. Asst. Director David V. Bernal Jr., gued), McIntyre, Dept, Carl H. U.S. Justice, Immigration Litigation, Office of DC, Washington, respondent. BECKER, ROTH, Before: ALITO and Judges. Circuit THE OPINION OF COURT ROTH, Judge: Circuit In 1982 Mohammad was convicted on result, charges. Immigra- As a narcotics (“INS”) tion Naturalization Service seeking deport deporta- now him. At his hearing, Tipu tion introduced evidence in his seriously favor of his rehabilitation and of his dependence upon ill brother’s him. Never- theless, immigration judge denied special equitable relief from un- Immigration der and Natural- 1182(c). (“INA’O, ization Act 8 U.S.C. (“BIA”) Immigration Appeals af- Board of immigration judge’s decision and firmed Tipu’s deportation to ordered Pakistan. Tipu appeals, challenging the BIA’s decision as an of discretion. As we conclude abuse properly im- that the BIA failed to consider portant factors in we will vacate of the BIA and remand this case the decision proceedings consistent with this for further opinion.
I. Tipu is a native and
Mohammed Zafar 25, 1971, February citizen of Pakistan. On on a age he entered the United States became a lawful student visa. He August He has resident alien on twenty-three continuously for resided here steadily employed, as an and has been mechanic, partner in a restaurant auto venture, stand, operator magazine He been the own- and a taxi driver. has Virginia taxi since er/operator of a cab to the court Tax forms submitted wages. paid has taxes on his show that App. at 29-36. hearing, im- brother, Following the lived with his Tipu has
Since
application for
migration judge
denied
Arshad suf-
Arshad.
Mohammad
Tipu deportable
waiver and found
attempt-
failure. Two
complete kidney
fered
1251(a)(ll)
because of
under 8 U.S.C.
failed,
transplants
and Arshad
kidney
ed
BIA on
Tipu appealed to the
conviction.
three times
dialysis treatment
undergo
*3
3,
later,
9,
August
Six
June
condition has become
Arshad’s
weekly. As
1992,
immigration
BIA affirmed the
rely
serious, he has come to
increasingly
212(c)
§
and dis-
judge’s
denial
dialysis
transportation to his
Tipu for
upon
timely
a
Tipu’s appeal. Tipu filed
missed
sup-
and financial
and for emotional
sessions
stay of
and motion for
petition for review
government
receives
port. Although Arshad
juris-
this
After a
deportation with
Court.
benefits, Tipu apparently provides
disability
challenge
Tipu’s appeal was re-
dictional
Arshad,
wife and
support for
substantial
stay
of
was
solved
children.
their two
1992,
18,
by panel
of
granted on December
22, 1982, Tipu pled guilty to a
January
On
appeal
This
followed.
Court.
heroin.
charge
conspiracy to distribute
of
year imprisonment,
to one
He was sentenced
II.
alleges
months.
which he served ten
of
jurisdiction
to re
This Court
very
conspiracy
was
that his role
by
deportation order
view a final
minor,
attending
consisting solely of
a dinner
1105a(a)(l).
§
The
pursuant
to 8 U.S.C.
dis-
meeting
which the
was
at
stay
depor
petition
for a
of
BIA’s denial of
brothers,
who were the
cussed
his older
tation is
under an abuse of discre
reviewed
lightest
sen-
conspirators.
received
217,
Foti
U.S.
228
tion standard.
375
conspirators. No evidence was
tence of the
(1963). Discretionary
n. 15
decisions
in-
was ever
introduced to show
they
unless
BIA will not be disturbed
drugs prior
to or
in the use or sale
volved
“arbitrary,
contrary
irrational or
found
be
after this conviction.
Chung v.
to law.” So Chun
(3d
608,
Cir.1979); Marroquin-Manri
612
conviction,
the INS
As a result of
(3d
Cir.1983),
quez v.
133
699
against him
began
proceedings
denied,
1259, 104
82
cert.
467
S.Ct.
U.S.
1251(a)(ll).
§
In a
pursuant
to 8 U.S.C.
(1984).
L.Ed.2d 855
4, 1986, hearing, Tipu conceded that he
June
applied for relief from
deportable
III.'
deportation under the waiver
inadmissibili-
212(c)
Attorney
requires the
Section
Gen-
212(e)
ty provision
§
of the INA. At his
designate
eral or her
as a matter of discre-
positive
hearing, Tipu submitted
letters
grant
tion to determine whether to
a waiver
minister,
probation
from his
support from his
statutory eligibility
once
is established.
officer,
personal acquain-
and from several
212(c)
§
statutory eligibility
for a
Tipu’s probation
from
tances. The letter
disputed.1
waiver is not
attested to
trustworthiness
officer
supporting
his brother.
language
to his crucial role
Neither the
of the statute nor the
regulations
that “the con-
criteria
probation
officer stated
relevant
establish
point
weigh applications
of fact an aber-
spiracy offense was
deportation.
See 8 U.S.C.
ration for this man.”
1182(c).
provides:
8
This section has been held
INA
U.S.C.
1. Section
applicable
lawfully
to be
also to
admitted resi-
lawfully
permanent
admitted for
resi-
Aliens
facing deportation
temporarily proceeded
who did not de-
abroad vol-
dent aliens
dence who
untarily
deporta-
part
prior
committing
are not under an order of
the United States
returning to a
tion and who are
lawful unrelin-
deportable.
acts that rendered them
Francis
years,
quished
of seven consecutive
Cir.1976);
Silva,
domicile
ability
resident
Circuit,
In this
we have not dealt
presented
and humane considerations
cial
directly
proper
with the
standard for deter
Marin, 16 I & N Dec.
Matter
his behalf.”
mining
whether the
has committed an
(BIA 1978).
balancing test
denying
abuse of discretion in
applied by the BIA
in Marin and
enunciated
However,
context,
waiver.
similar
in
in this case is as follows:
volving applications
discretionary stay
considerations,
deportation,
this Court has concluded that
have been
Favorable
*4
may
of
if
a decision
the
be remanded
family
such factors as
ties
found to include
adequately
in
States,
fails
to consider the evidence
long
residence of
within the United
country (especially
applicant.
the record which
an
In
in
when
favors
duration
this
(3d
Cir.1984),
inception of residence occurred at a
v.
the
Sotto
Among the factors deemed adverse to
underlying circum-
alien are the nature of
Although our review of the Board’s find-
issue,
ground at
stances of the exclusion
limited,
may
ings is
and we
overturn the
presence
significant viola-
of additional
Board’s determination of
claims
Sotto’s
laws,
country’s immigration
of this
tions
only for
we are not
discretion,
abuse of
record, and, if
the existence of a criminal
determining
foreclosed
whether the
from
seriousness,
so,
nature, recency, and
its
proper procedures
Board followed
and con-
presence
of other evidence indica-
and
appraised
sidered and
the material evi-
respondent’s
or
bad character
tive
dence before it.
If the administrative rec-
undesirability
as a
resident of
fails
that such evidence has
to reveal
ord
country.
considered,
fairly
proper
is
been
course
Marin,
Matter
16 I & N Dec.
582-873
of
to remand the case to the INS so that
(BIA 1978).
Roberts, Int.
See also Matter of
may evaluate such evidence
Service
(BIA
1991)
1,May
Matter
Dec. 314B
application
on the
consider
effect
3134 (BIA
1990);
Edwards,
2,May
Int. Dec.
whole_
determine whether
[T]o
Buscemi,
(BIA
19 I N Dec. 628
Matter
&
arbitrary,
administrative action was
1988).
evidence,
why
apprised
must be
rel-
courts
face,
persuasive
evant
on its
was dis-
applicant
bears the burden
credited.
212(c)
demonstrating
that he merits
Marin,
I
deportation. Matter
16 &
omitted).
(citations
Id. at 837
1978).
(BIA
BIA case
N Dec.
582-83
of the BIA
We have also vacated decision
just
law has also established that
one
gave
consideration” to an
which
“insufficient
adverse considerations
be determinative
application
in favor of an
important factor
granted
relief is
and that
of whether
stay
deportation for reasons of
seeking a
of a serious
an alien who has been convicted
v.
609 F.2d
family hardship. Bastidas
usually
required
drug offense will
to make
(1979);
see also Tovar
showing
outstanding equities
unusual
or
Nevertheless,
Cir.1980).2
Bastidas,
[Tipu].” App. at
In
we
F.2d 794
ill health
BIA failed to find that Arshad’s
is
BIA’s decision did not
the-
concluded
outstanding equity
observ-
record
the evidence
reasonably reflect
family
ing
that “the
sur-
without elaboration
family;
with his
close ties
of Bastidas’s
[Tipu]
while
was incarcerated.”
vived
not be
“will
that the decision
held
suggests
Ar-
in the record
Evidence
unless the reasons for
by this court
affirmed
substantially
condition has
worsened
shad’s
clear.” 609 F.2d
finding are made
such a
in the decade since
was incarcerated
1982;
letter from Ar-
ten months
a 1986
circuits,
have reviewed denials
Other
“given
his deterio-
shad’s doctor states
BIA,
applied a
have
I
rating situation feel that Mr.
essen-
See,
standard.
abuse of discretion
similar
safety.” App.
Mr. Arshad’s care and
tial for
e.g.,Diaz-Resendez
' Thus,
does
while the
Cir.1992).
Diaz-Resendez,
(5th
the Fifth
hardship
brother
conclude
denial of
the Board’s
Circuit
reversed
family
are favorable factors
members
herein
relief because “the record
behalf,
of these
the BIA’s discussion
actually con-
that the Board
does not reflect
suggests
properly weigh
a failure
meaningfully
Diaz-Re-
addressed
sidered
deteriorating condition and his fam-
Arshad’s
hardship,”
and because
assertions
sendez’s
*5
increasing dependency
Tipu.
ily’s
on
“inappropriately
Board
evaluated”
Second, Tipu introduced credible evidence
rehabilitation.
of Diaz-Resendez’s
evidence
conspiracy
heroin
was a
that his role
at
Tipu’s probation
minor one.
officer wrote
balancing test established
Given the
licensing authority in
letters
to the taxi
finding
the standards for
Mam and
D.C.,
Washington,
and to
1982
the INS
by
of discretion
discussed
abuse
Tipu’s
App.
on
at
behalf.
above, along
fact that the BIA did
with the
letters, Tipu’s probation
these
officer stated
twenty
Tipu’s
of
find that
consecutive
Tipu
“remotely
drug
con-
was
involved
uninterrupted residence in the United States
Tipu’s
spiracy case” and that
“role in the
outstanding equi-
constituted an unusual and
conspiracy
only
very
can
be described as a
favor,
aspects
ty
App.
in his
at
four
depor-
minor one.”
testified at his 1986
sufficiently questionable
opinion
or
hearing
conspiracy
role in the
tation
depart
precedent
significantly
from BIA
attending a
was limited to
dinner where the
enough
provide a
for
as to
cumulative basis
conspiracy
App.
was discussed.
at 56-60.
vacating
Board’s decision.
One of the factors listed
the Marin test to
First,
inexplicably discounted
the Board
application
consideration of
hardship
212(c)
significant
“nature,
evidence of the
recency,
§
for a
waiver is the
Tipu’s deportation
impose
would
on his
any
and seriousness” of
crimes committed
family given
Nevertheless,
financial
brother and his
their
applicant.
opinion
of
dependency upon Tipu and
ill
placed great emphasis
Tipu’s
the brother’s
on
conviction,
from his
emphasis
health.
submitted letters
that ascribes a serious-
physician
Tipu’s
proportion
brother Arshad and Arshad’s
at-
is out of
ness to
crime that
testing
life-threatening
recency
Ar-
nature of
to the nature and
of the offense.
opinion
in The BIA’s
states:
Tipu’s
shad’s illness and to
crucial role
providing transportation
for Arshad
respondent’s
conviction for
dialysis. App.
27. The BIA’s
import
highly
addictive
often le-
opinion recognized
“physical
drug
“weighty
respon-
that Arshad’s
thal
is
evidence
ability
depends
undesirability
welfare
on his brother’s
dent’s
resi-
transport
necessary
drugs
pernicious
him to
medical care” and
dent. The
effects of
family
financially dependent
society are
documented.”
that Arshad’s
“is
American
well
stay
applica-
2. Neither Tovar nor Bastidas involved
where the BIA held that the
212(c)
applicants
hardship”
§
for
failed to show "extreme
tions for
waivers of
statutory requirements
drug-related activity.
meet the
for
Both involved review of
sufficient to
stay.
petitions
the BIA’s denial of
(1st
212(c)
applicant.
of a
Matter
favor
Ed
Hazzard
wards,
(BIA
Cir.1991)....
2, 1990);
May
Int. Dec. 3134
seriousness of his
[T]he
Buscemi,
(BIA
Matter
19 I & N
clearly
a dis
Dec. 628
action
demonstrates
criminal
1988).
society
regard
the welfare of
INS, supra; Mat
Hazzard v.
whole. See
emphasized
importance
Edwards, supra.
ter
thorough
possible
review the
application
in favor of an
Hazzard and Ed-
relief:
It is instructive
both
“[A],proper determination as to whether an
convictions of individuals who
wards involved
alien has demonstrated unusual
drug-related
or outstand-
repeatedly engaged in serious
ing equities
only
can
be made after a com-
convicted of three
crimes. Hazzard was
plete
review the favorable factors in his
drug charges and one federal cocaine
state
Edwards,
case.” Matter
Int. Dec. 3134 at
charge
year period.
all
a six
distribution
over
(BIA
1990).
2,May
However,
7 n. 3
burglary-relat-
of six
Edwards was convicted
Tipu’s
BIA’s discussion of
is
rehabilitation
drug possession
charges
ed
and of seven
hardly
“complete”
review.
charges
distribution-related
between 1977
and 1987. Neither Hazzard nor Edwards
briefly
The BIA’s
did
discuss the
that he was rehabilitated and
demonstrated
However,
evidence of
rehabilitation.
granted a
neither was
rehabilitated,
it failed to find that
BIA. The
assertion
or to hold that his rehabilitation
awas
sub-
preliminary
passive involvement in one
meet-
equity in
citing
stantial
instead
disregard
ing
a serious
for the wel-
showed
Tipu’s knowing participation
conspira-
society
disproportionate
fare of our
to cy.
precluded
as if that
his later rehabilita-
involvement’,
particularly when com-
tion.
pared with the actions of others denied
Two other federal circuits have considered
Thus,
relief.
raising nearly
cases
identical issues.
In both
*6
“nature,
properly
failed to
consider the
re-
INS,
(5th
v.
Diaz-Resendez
V. brother, Arshad, petitioner’s Mohammed above, family dependent de- upon As discussed his brother’s were nying Tipu’s application for him. Mohammed Arshad suffers renal discrediting adequately explain petitioner failure and looks to the for failed finan- Tipu’s hardship support transportation favor —the cial and for three factors to and impose facility on his from the kidney would where he receives family, Tipu’s dialysis. mi- brother and his brother’s took this factor into ac- count, single years previous noting hardship [petition- nor role crime ten that “the lawful, opinion, er’s] rehabilitation. resident brother and addition, family the BIA did not consider States citizen United members are country in property [petitioner’s] and business ties to this favorable factors in the behalf.” ownership indicating form of his of a taxicab and his The BIA also noted the facts rehabilitated, operation petitioner stating: of a taxi since 1983. In combina- had been tion, four these defects rehabilitation, As to his is no there evi- Thus, provide grounds vacating for it. all dence of additional criminal behavior other above, grant the reasons discussed will conspiracy. than the serious conviction for review, petition we will vacate the [petitioner’s] In his favor we consider the decision of the BIA and we will remand this employment return to his as a taxi driver proceedings case to the BIA for further con- engaged He also after incarceration. *8 opinion. this sistent with in volunteer activities in the local area and has favorable character references. He
ALITO, Judge, dissenting: Circuit report proba- a from his received favorable tion officer. majority beyond has The wandered well scope appellate that
the limited review end, however, considering In the after all permitted to exercise a case like determined, this. factors, BIA a the the as matter I Because believe that the decision of the discretion, grant not to a waiver. (“BIA”) Immigration Appeals Board of can- Our standard of review a case such as not be disturbed under the correct standard “do[ ] this is narrow. We not have the au- review, I dissent. thority weight to afford to to determine the INS, petitioner applied v. this case each factor.” Cordoba-Chaves 946 (7th Cir.1991); 1244, waiver of under Section of F.2d 1246 accord Gouv- 3.0, 3.1(a)(1) (d)(1). §§ 1. See 8 C.F.R. &
588 petitioner’s (1st Cir.1992); 814, BIA counted this evidence INS, 819 F.2d 980 eia v. (10th BIA majority that “the failed 223, finds 226 F.2d 956 v. Nunez-Pena weight” to this evidence. Ma- give proper Cir.1992); 755 F.2d to Sanchez added). (emphasis Cir.1985). Rather, (5th majority jority Opinion at 585 as the 1160 notes, decision majority finds— Merely stating what the “arbitrary, it is unless disturbed may not be “emphasis” much put too that contrary So Chun to law.” or irrational factor, another factor failed to evaluate one 612 Cir. Chung v. 602 merely “favor- “outstanding” rather than as 1979); Marroquin-Manriquez accord weight” able,” give “proper to a not and did (3d Cir.1983), cert. 133 699 F.2d to me to demonstrate third factor —seems denied, 1259, 104 82 S.Ct. 467 U.S. word, majority, in if not in has deed standard, (1984). this it Under L.Ed.2d In- wrong standard of review.2 applied the here should BIA’s decision that the is clear BIA acted determining whether the stead of sustained, else one for whatever law, irrationally, contrary to arbitrarily, or decision, it was not arbi think about place and majority usurped irrational, contrary law. As the trary, ap- weighed the relevant factors itself — case, aptly wrote similar First Circuit with its own views parently in accordance call, pure judgment “was a the BIA’s decision I immigration policy. cannot en- drug and “refuse to sec simple,” and we should approach. dorse in which on the manner ond-guess the Board arriving at weighs factors when different powers, separated government “In this Gouveia, ultimate decision.” judiciary usurp Congress’ it is not for the authority Attorney General grant of however, majority, colleagues in the My ap- approximates de novo by applying what essentially Rios-Pineda, because BIA’s decision vacate the INS v. pellate review.” way the BIA 2098, 2103, like the they 444, 452, do not 105 S.Ct. U.S. majority finds that (1985). various factors. Applying the limited L.Ed.2d peti- “emphasis” on the put too much may properly of review that we standard conviction, stating that the BIA “as- tioner’s reviewing decision such as exercise Tipu’s crime that is us, a seriousness cribe[d] for over- I see the one before no basis recency the nature and proportion to decision, out of turning and I would therefore Majority Opinion offense.” deny petition for review. majority the BIA for faults vein, similar emphasis on the hard- enough failing place deportation would petitioner’s
ship that the family. his brother’s have on his brother.and gave Although the BIA considered factor, majority finds weight to this “fail[ing] that Ar- to find the BIA erred in outstanding equity in ill health is shad’s favor,” merely opposed “favor- (em- Majority Opinion at 584 factor[ ].” able added). Furthermore, majority phasis BIA’s evaluation of evidence criticizes the petitioner’s rehabilitation. While *9 might have reached a differ- notion that the BIA three criticisms of the addition to these decision, majority only states that had known that the ent result in this case error.” Ma- includes factual "Board's decision petitioner strikes me as fanci- owned this vehicle opin- BIA's jority Opinion Whereas the Nevertheless, majority merely wished if the ful. property petitioner owned no that the ion stated in this case so that the BIA could consid- to remand majority country, finds that the record fact, majority, object. would not er this I petitioner owned establishes that as of 1986 however, sup- apparent makeweight to uses this purchased two earlier he had taxicab that holding. port its much broader Majority Opinion & n. 3. The $1700. at 586 notes 2.