Unpublished Disposition, 855 F.2d 861 (9th Cir. 1988)

No. 87-7245.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and POOLE, Circuit Judges, and DAVID W. WILLIAMS,^**  District Judge.

MEMORANDUM^*** 

OVERVIEW

Camilo Juarez-Rodriguez seeks review of a Board of Immigration Appeals (BIA) decision affirming the immigration judge's denial of his application for discretionary relief from deportation under Sec. 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c). We affirm.

FACTS

Juarez-Rodriguez, a native and citizen of Mexico, was lawfully admitted into the United States as a permanent resident in 1963. He is married, with two minor and seven adult children, all of whom reside in the United States. He lives in San Luis, Arizona, and the record indicates that during his residency in this country he has been employed fairly steadily as a field laborer, when not incarcerated.

In 1973 Juarez-Rodriguez was convicted of transporting 100 kilograms of marijuana and received a 3-year sentence. In 1979 he was convicted of attempted sale of heroin and received a 4-year sentence. In between these two convictions he was arrested, along with his foreman, on another drug related offense. Although his testimony was contradictory on the details of what occurred after the arrest, at one point he indicated that he was charged with a heroin violation and attended the first day of trial, but then hid in Mexico until his attorney notified him that he had not been convicted.

When Juarez-Rodriguez was released after serving 32 months of the second sentence, the INS issued an order to show cause why he should not be deported on account of the heroin conviction. He admitted the factual allegations in the order to show cause and applied for relief from deportation under Sec. 212(c). The immigration judge found Juarez-Rodriguez deportable and denied his application for discretionary relief. The BIA affirmed, and Juarez-Rodriguez now seeks review of the BIA decision.

DISCUSSION

A person who meets the other requirements of Sec. 212(c) may be granted relief from deportation "in the discretion of the Attorney General."¹  8 U.S.C. § 1182(c). We review BIA decisions under this section for abuse of discretion, and we will set aside the decision only if the BIA failed to support its conclusion with a reasoned explanation based upon legitimate concerns. Vargas v. INS, 831 F.2d 906, 908 (9th Cir. 1987). Juarez-Rodriguez maintains that the immigration judge abused his discretion by placing too much weight on his criminal record and too little on various favorable factors.

The BIA requires immigration judges to "balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of section 212(c) relief appears in the best interests of this country." Matter of Marin, 16 I & N Dec. 581, 584 (BIA 1978). The BIA has established a number of factors, both adverse and favorable, which are relevant to the discretionary grant of relief from deportation and are to be considered by immigration judges. Id. at 584-85. Because the Immigration and Nationality Act distinguishes between aliens convicted of drug offenses and those convicted of other crimes, and because of the disfavor with which the BIA views drug offenses, the BIA requires "a showing of unusual or outstanding countervailing equities by applicants for discretionary relief who have been convicted of serious drug offenses, particularly those involving the trafficking or sale of drugs." Id. at 586 n. 4.

Both the immigration judge and the BIA reviewed the record in Juarez-Rodriguez's case in accordance with the criteria set forth in Matter of Marin.²  The BIA acknowledged that Juarez-Rodriguez had established several favorable factors, and it considered each of them. He had been married since 1954 and lived in this country for 19 years. He had nine children, one with a serious medical problem. He had worked steadily to support his family, and he had started making payments on a home. He had submitted several favorable letters, and he testified that he had encountered no problems with law enforcement authorities since his last conviction. However, weighed against the nature of Juarez-Rodriguez's criminal offenses, the recentness of the last conviction, the length of sentences he received, and the lack of convincing evidence of rehabilitation, the BIA found that favorable discretionary relief was not warranted. Despite the considerable favorable factors on which Juarez-Rodriguez presented evidence, the decision to deny relief from deportation was not an abuse of discretion. The BIA considered the relevant factors and gave a reasoned explanation for its decision, which was based on legitimate considerations.

Petition dismissed.