Mohammed Baher Elramly v. Immigration & Naturalization ServiceMohammed Baher Elramly v. Immigration & Naturalization Service
ORDER
On the court’s own motion the mandate is recalled.
*222 The following amendment is made to the opinion filed March 2,1995.
At
Even when classification as “serious” leads to a requiremеnt of “unusual” or “outstanding” equities, that categorization is not to be imposed in a rigid manner inevitably compelling the denial of relief; it is still essential that the seriousness of the petitioner’s рarticular conduct be assessed individually in determining its weight as an adverse factor.
Yepes-Prado,
OPINION
The Immigration and Naturalization Service (“INS”) is seeking to deport Mohammed Baher Elramly because in 1982 he was convicted of selling $100.00 worth of hashish. Elramly sought discretionary relief based on section 212(c) of the Immigration Act, 8 U.S.C. § 1182(c). Because the Board of Immigration Appeals (“BIA”) failed to еxamine the particular nature of Elramly’s drug offense and categorically concluded that it was a “serious drug offense,” we grant the petition for review, vacate the BIA’s decision, and remand.
I
Elramly lawfully entered the United States on a nonimmigrant student visa in 1976. In 1979, he married a United States citizen and became a lawful permanent resident. During his marriage he had three children. In 1982, Elramly pleaded guilty to two counts of “unlawfully and knowingly sell[ing] resin extract of Cannabis, commonly known as Hashish,” in violation of Florida Statute 893.13(l)(a)(2). For this offense, El-ramly received a 90 day sentence, three years probation, and a fine.
After Elramly divorced in 1990, the INS ordered Elramly to show cause for why he should not be deported because of his 1982 drug offense, pursuant to the Immigration Act § 241. 8 U.S.C. § 1251(a)(ll) (1988). 1 Elramly conceded that he was deportable, but sought a discretionary waiver under § 212(c) of the Immigration Act. 8 U.S.C. § 1182(c).
The immigration judge found “the positive and negative equities ... extremely close,” but denied Elramly’s request for a section 212(e) waiver. 2 After this denial, Elramly appealed to the BIA. 3 Because of Elramly’s “serious” drug conviction, the BIA required Elramly to show “unusual or outstanding” countervailing equities. The BIA found that there werе “substantial” equities in Elramly’s favor, but that they were nevertheless insufficient because Elramly “stands convicted of a very serious drug offense.” On appeal to this court, Elramly advances two arguments: that the BIA faded to consider his rehabilitation, and that the BIA improperly weighed the positive and negative equities.
II
Under section 212(c) of the Immigration Act, the Attorney General and hеr agents may grant discretionary relief to aliens who, like Elramly, are legal permanent residents and meet a seven-year residency requirement.
Yepes-Prado v. INS,
Because of the Congressional policy against lenient treatment of drug offenders, the BIA properly considers a “serious” drug offense a weighty adverse factor.
Ayala-Chavez v. INS,
Contrary to Elramly’s claim, the BIA did properly account for all of Elramly’s positive equities, including his rehabilitation. We therefore reject Elramly’s contention that the BIA failed to consider his rehabilitation. Elramly’s second argument is not so easily dismissed. In weighing the negative factors, the BIA should have considered Elramly’s drug conviction “on an individual basis rather than in a blanket fashion.” Id. at 1371. Rather than considering the particular nаture of Elramly’s drug offense, however, the BIA automatically treated the offense as a “very serious drug offense.” This was error. Delivering $100.00 worth of hashish is not the same as conspiring to distribute $50,000 worth оf cocaine. See, e.g., Matter of Coelho, Interim Decision 3172, at 2 (BIA1992) (BIA affirmed IJ’s denial of § 212(c) relief to alien convicted of “knowingly and intentionally possessing with the intent to distribute quantities of cocaine ... ”). By treating Elramly’s offense categorically as a “very serious drug offense,” the BIA incorrectly lumped together a disparate range of drug offenses. Even drug offenses come in degrees of seriоusness.
Because the BIA automatically treated Elramly’s offense as a “very serious drug offense,” the BIA required Elramly to make a showing of “unusual or outstanding” equities.
4
This was an error of great сonsequence. In the context of drug offenses, overcoming the “outstanding” equities requirement has proven to be an extremely difficult hurdle.
See De Gonzales v. INS,
Indeed, had the BIA taken into account the actual nature of Elramly’s drug offense, it may well have reached a different result. As the BIA noted, there are substantial equities in Elramly’s favor. Elramly has family ties in the United States, including his three children, ex-wife, and current wife. 6 He has resided in this country fоr a long time (over fifteen years when the deportation proceedings began), and deporting him would cause hardship to his family because, among other things, he pays child suppоrt. He is also currently employed, and his current and former employers affirm that he is a “dependable” employee. In addition, he is actively involved with community service through work in the Moslem community. Finally, there is evidence of rehabilitation and other evidence attesting to his good character. See Matter of Marin, 16 I & N Dec. 581, 584-85 (BIA1978) (listing all of these factors as relevant). All of these “substantiаl equities” weigh primarily against Elramly’s 1982 drug offense. 7 The BIA thus clearly erred by failing to consider the particular nature of Elramly’s offense and its reflection on his undesirability as a permanent residеnt.
Ill
Instead of taking into account the particular nature of Elramly’s drug conviction, the BIA categorically characterized the drug offense as “very serious,” and thereby required Elramly tо make a showing of “unusual” or “outstanding” equities. This methodology was error. We therefore grant the petition, vacate the BIA’s decision affirming the IJ’s deportation order, and remand for furthеr proceedings not inconsistent with this opinion.
PETITION FOR REVIEW GRANTED; VACATED and REMANDED.
Notes
. The Immigration Act of 1990, Nov. 29, 1990, Pub.L. 101-649, 104 Stat. 4978, renumbered and amended portions of Title 8 U.S.C. The amendments do not apply, however, to proceedings, likе Elramly’s, that began before the effective date of the amendments.
. The BIA found that Elramly had family ties in the United States, that his length of residence was significant, that he was involved in community service, that deporting him would cause hardship to his family, and that there was evidence of some rehabilitation.
.The BIA had previously summarily dismissed Elramly’s appeal for failing to state the reasоns of the appeal. In an unpublished disposition this court reversed the BIA's decision and remanded for a decision on the merits.
Elramly v. INS,
. We have never defined what constitutes a "serious” drug offense and are reluctant to do so. The BIA, however, in response to an inquiry made by the Sixth Circuit, “viewed a 'serious' drug offense as a drug trafficking crime which constitutes an 'aggravated felony’ under the [Immigration] Act.”
Matter of Burbano,
Interim Decision 3229, at p. 8 n. 4. (BIA1994). Under section 101(a)(43) of the Immigration Act, "[t]he term 'aggravated felony’ means ... any illicit trafficking in any controlled substance ... for which the term of imprisonmеnt imposed (regardless of any suspension of such imprisonment) is
at least 5
years_" 8 U.S.C. § 1101 (a)(43) (emphasis added). Even when classification as "serious” leads to a requirement of "unusual” or "outstanding" equities, that сategorization is not to be imposed in a rigid manner inevitably compelling the denial of relief; it is still essential that the seriousness of the petitioner’s particular conduct be assessed individually in determining its weight as an adverse factor.
Yepes-Prado,
. During oral argument, we, too, raised the concern that the BIA may have a de facto policy of denying discretionary relief to aliens cоnvicted of a serious drug offense. The BIA has since provided us with two unpublished opinions, Matter of Morrobel, A30-924-038 (BIA, March 10, 1993) and Matter of Saenz-Villareal, A18-460-292 (BIA, August 26, 1994), in which discretionary relief was granted to an alien who had a drug conviction. See also Matter of Burbano, Interim Decision 3229 (BIA1994). Our decision of El-ramly's case in no way depends on whether the BIA does in fact have a de facto policy of denying *224 relief to aliens convicted of a serious drug offense.
. Because Elramly married his current wife after the deportation proceedings began, the BIA properly discounted the importance of this factor.
. It is true that there were some other negative factors, but the BIA's decision clearly indicates that the drug offense was decisive.