White v. INSWhite v. INS
I. Background
White, a citizen of the Dominican Republic, has lived as a permanent resident in this country since 1970. In 1982 she was arrested and charged with five separate drug and three separate firearm offenses.1 She was tried, convicted, and sentenced in the Massachusetts Superior Court on four of the charged drug offenses. The remaining drug charge and the three firearm charges were placed “on file”
Citing one of the 1983 drug convictions (possession of cocaine with the intent to distribute), the Immigration and Naturalization Service (INS) ordered White to show cause why she should not be deported. Following an administrative hearing, White was found to be deportable under § 241(a) of the Immigration and Nationality Act (“INA” or “the Act“) (recodified at
White appealed to the Board of Immigration Appeals (“BIA“). The BIA found that while the immigration judge erred in intimating (if not ruling) that discretionary relief undеr § 212(c) was unavailable to White because she had been found guilty of serious drug offenses, any prejudice resulting from that error could be remedied by applying the correct legal standard on appeal. Acknowledging White‘s eligibility for discretionary relief despite her serious drug offenses, the BIA reassessed all equitable factors relevant to her application and independently determined that discretionary relief was not warranted.
The BIA observed that “while [the equities favoring White] may be unusual or outstanding, [they] are not sufficient to counterbalance her ser[i]ous criminal misconduct.” BIA Decision at 5. That serious criminal misconduct was described as follows:
[She] was convicted of multiple counts оf possession of cocaine or heroin with intent to distribute, and possession of firearms, and one count of possession of heroin. She committed crimes involving drug trafficking and firearms on two separate occasions . . . . [P]ossession and trafficking in drugs is a very serious adverse factor in determining whether disсretionary relief is warranted under section 212(c). We find this particularly true where
firearms are involved, given the potential for violence and homicide they represent, as is not uncommon where drug trafficking exists, and which together tear at the very fabric of our society.
BIA Decision at 5 (emphasis added).
White challenges the denial of a discretionary waivеr of deportability, arguing that the BIA erred as a matter of law when it weighed her “filed” charges as if they had been final “convictions.” White also complains that the BIA gave too much weight to certain adverse factors and too little weight to favorable factors in denying relief. Only the first point requires discussion.4
Because the decision to grant or deny relief from deportation under § 212(c) is a matter committed to the BIA‘s discretion, we consider only whether the BIA acted arbitrarily or capriciously, or abused its discretion. Hazzard v. INS, 951 F.2d 435, 438 (1st Cir. 1991); McLean v. INS, 901 F.2d 204, 205 (1st Cir. 1990). The decision must be upheld “unless it was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.” McLean, 901 F.2d at 205 (quoting Williams v. INS, 773 F.2d 8, 9 (1st Cir. 1985)).
In this case we need consider only whether the BIA‘s decision “rested on an impermissible basis” that is, whether White‘s “filed” charges, particularly those related to firearms, were improperly considered as convictions, and, if so, whether that error was prejudicial.
Sectiоn 241(a)(11) of the INA declares deportable any alien who “at any time has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance.”
A. Convictions for Immigration Purposes
As we have held before, federal law defines the tеrm “conviction” as it is used in the immigration context. Molina v. INS, 981 F.2d 14, 19 (1st Cir. 1992) (“[T]he need for national uniformity in the application of federal law and the history of [the] word [conviction] as applied by the INS . . . and the courts, suggest that the federal word, while reflecting basic state usage, need not provide its precise mirror image.“); Pino v. Nicolls, 215 F.2d 237, 243 (1st Cir. 1954), rev‘d on other grounds, Pino v. Landon, 349 U.S. 901 (1955) (per curiam).
(1) а judge or jury has found the alien guilty or he [or she] has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty;
(2) the judge has ordered some form of punishment, penalty, or restraint on thе person‘s liberty to be imposed . . . ; and
(3) a judgment of adjudication of guilt may be entered if the person violates the terms of his [or her] probation or fails to comply with the requirements of the court‘s order, without availability of furthеr proceedings regarding the person‘s guilt or innocence of the original charge.
Matter of Ozkok, Int. Dec. 3044 at 13 (BIA 1988)5; see also Molina, 981 F.2d at 18 (applying the Ozkok test).
It is apparent, and the INS seems willing to concede,6 that White‘s “filed” criminal charges, including the three charges related to unlawful firearm possession, simply do not qualify as “convictions” for immigration purposes. Under Massachusetts law the “filing” of a charge at any stage completely suspends the adjudicative process, including the defendant‘s right to appeal, until such time as the court reactivates or makes some further disposition of the case. See Commonwealth v. Delgado, 367 Mass. 432, 438, 326 N.E.2d 716, 722 (Mass. 1975). In White‘s case, no punishment or penalty or restraint on liberty has been
B. Prejudicial Error
We turn now to a more troublesome question. Was White prejudiced by the error? Improper consideration of favorable or unfavorable factors by the BIA may sometimes constitute abuse of discretion, and remand is generally required if the mistake could have affected the balance of equities upon which the decision rests. See Martinez v. INS, 970 F.2d 973, 975 (1st Cir. 1992) (citing Jen Hung Ng v. INS, 804 F.2d 534, 540 (9th Cir. 1986)); See, e.g., Yepes-Prado v. INS, No. 91-70114, 1993 U.S. App. LEXIS 29444 at *4 (9th Cir. Oct. 8, 1993) (as modified); Shahandeh-Pey v. INS, 831 F.2d 1384, 1389 (7th Cir. 1987). However, we also recognize that the BIA‘s decision need not be disturbed on appeal if the error is “marginal.” See, e.g., Akrap, 966 F.2d at 272 n.9 (declining to reverse denial of discretionary relief where BIA mistakenly аssumed petitioner
White is undeniably deportаble, and the BIA‘s mischaracterization of her filed charges did not preclude consideration for discretionary relief.7 She concedes that in reviewing an application for discretionary relief the BIA may consider any evidence of bad character or undesirability as a permanent resident. See Matter of Edwards, Int. Dec. 3134 at 8 (BIA 1990) (listing adverse factors relevant to discretionary determinations). Here, the BIA certainly could have considered her filed chargеs as some evidence weighing against discretionary relief. See, e.g., Bustos-Torres v. INS, 898 F.2d 1053, 1055 (5th Cir. 1990) (evidence admissible if probative and fundamentally fair). After all, White pleaded guilty to the filed drug charge and was found guilty by a jury on one of the filed firearm charges. Given
The BIA found White‘s convictions for drug possession and drug trafficking to be “a very serious adverse factor” which could be offset only by a demonstration of “unusual or outstanding equities.” BIA Decision at 4. That these drug convictions should weigh so heavily against petitioner‘s favorable equities, the BIA concluded, was “particularly true where firearms are involved.” Id. at 5 (emphasis added). The record contains ample reliable evidence of White‘s simultaneous involvement with drugs and firearms. The BIA‘s conclusion that the severity of petitioner‘s drug convictions was enhanced by her association with firearms is a finding justified by the record and well within the boundaries of its discrеtion. To be sure, the filed charges were erroneously referred to as “convictions,” but the BIA did not rely on the fact of firearm “convictions” per se in denying relief; it relied on White‘s conduct involving drugs and guns.
The distinction between proof of guilt by final cоnviction and by some less reliable means is an important one to maintain. But here, that distinction played no discernible role in the outcome. The BIA‘s error was marginal and harmless under these facts. See Liwanag v. INS, 872 F.2d 685, 687 n.2 (5th Cir. 1989) (no need to remand a сase where there is little likelihood that the agency would have reached a different conclusion but for the error); Akrap, supra.
The denial of discretionary relief is affirmed.