Unpublished Disposition, 902 F.2d 1578 (9th Cir. 1990)

MEMORANDUM^* 

The appellant, Hector Carrillo-Bravo, is a native and citizen of Mexico. In 1973, he unlawfully entered the United States, along with his mother and three brothers. On June 20, 1983, the INS ordered him to show cause why he should not be deported pursuant to Section 241(a) (2) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1251(a) (2), for having entered the United States without inspection.

At an initial hearing before an immigration judge, Mr. Carrillo-Bravo conceded deportability and requested suspension of deportation pursuant to Section 244(a) of the Act, 8 U.S.C. § 1254(a). At the next hearing, Mr. Carrillo-Bravo testified that he had five prior misdemeanor criminal convictions in the State of Washington. He admitted that in 1980 he pled guilty to driving while intoxicated. In 1981, he pled guilty to criminal trespass. In 1982, he received two citations: a minor in possession of alcohol, and destruction of property. In 1985, he was convicted of petty theft. In June 1985, he was convicted as an habitual traffic offender and served six months in prison.

Mr. Carrillo-Bravo has never been married and has no children. He does not live with his family nor does he provide financial support to his family. He is in good health and does not have any physical disabilities which would preclude him from working. He does not own any property. He is fluent in English and Spanish but cannot write in Spanish.

In an oral decision dated March 18, 1987, the immigration judge found him deportable as an alien who had entered the United States without inspection. The judge denied Carrillo-Bravo's application for suspension of deportation on the grounds that Mr. Carrillo-Bravo was statutorily ineligible because he failed to establish good moral character and extreme hardship. However, he granted him voluntary departure.

Mr. Carrillo-Bravo filed an administrative appeal to the BIA. On March 29, 1989, the BIA dismissed the appeal, affirming the judge's denial of suspension of deportation. In addition, the BIA held that Mr. Carrillo-Bravo was ineligible for the relief of voluntary departure, in light of the judge's finding that he lacked good moral character. On May 5, 1989, Mr. Carrillo-Bravo petitioned this court to review the BIA's decision.

This court reviews a denial of suspension of deportation by the BIA under an abuse of discretion standard. Hernandez-Robledo v. INS, 777 F.2d 536, 541 (9th Cir. 1985) (denial based on lack of good moral character); Alvarez-Madrigal v. INS, 808 F.2d 705, 706 (9th Cir. 1987) (denial based on no extreme hardship).¹  The denial of voluntary departure is reviewed for an abuse of discretion. Villanueva-Franco v. INS, 802 F.2d 327, 329 (9th Cir. 1986). The BIA abuses its discretion only when the manner in which it was exercised was arbitrary and capricious. Id.

To be eligible for discretionary suspension of deportation under 8 U.S.C. § 1254(a) (1) an alien must show: (1) that he has been continually physically present in the United States for at least seven years prior to his application for relief; (2) that he is and has been a person of good moral character; and (3) that, in the opinion of the Attorney General, his deportation would result in "extreme hardship" to himself or to his spouse, parent or child who is a citizen of the United States or a lawful permanent resident. The burden is on the alien to demonstrate both statutory eligibility and that the equities merit the favorable exercise of discretion. 8 C.F.R. Sec. 247(d); Hernandez-Robledo v. INS, 777 F.2d 536, 542 (9th Cir. 1985).

The BIA denied Carrillo-Bravo's application for suspension of deportation because Carrillo-Bravo failed to establish his good moral character and did not demonstrate that his deportation would result in extreme hardship. Carrillo-Bravo argues that the BIA erred in its moral character determination and failed to consider all the relevant factors when deciding the extreme hardship issue.

Section 244(a) (1) grants to the BIA discretion to construe the "extreme hardship" requirement narrowly. Alvarez-Madrigal v. INS, 808 F.2d 705, 706 (9th Cir. 1987). As part of its extreme hardship determination, the BIA must consider all factors relevant to the hardship finding and state its reasons for denying relief. Id. We review the BIA's finding of no extreme hardship for abuse of discretion. Id. If the BIA fails to consider all relevant factors, it has abused its discretion. Mejia-Carrillo v. INS, 656 F.2d 520, 522 (9th Cir. 1981).

The BIA considered the following factors in determining that Carrillo-Bravo had not shown extreme hardship: emotional hardship based on separation from his family, his length of residence in the United States, his single status with no dependents, his employment history, his lack of disabilities which would preclude his employment in Mexico, and his community ties. [BIA decision pp. 2, 4-5]

Carrillo-Bravo argues the BIA abused its discretion because it failed to consider all factors relevant to extreme hardship. Specifically, he argues the BIA did not consider the reliance the Mexican-American family places on the extended family for emotional support. However, the BIA did look at the hardship that will be caused by the separation of the family. The BIA found that "Although the respondent's separation from his family ... will create emotional hardship, it is not the type of hardship ... generally construed as extreme." [Id. ] The BIA gave sufficient consideration to Carrillo-Bravo's claim of hardship due to family separation. See Alvarez-Madrigal v. INS, 808 F.2d 705, 707 (9th Cir. 1987).

Carrillo-Bravo also argues that the BIA failed to consider various other factors including his age and his immigration history. However, he did not present evidence relating to these factors at the immigration hearing and does not now offer an explanation of their relevance to the hardship determination. Carrillo-Bravo bears the burden of establishing extreme hardship. See Hernandez-Robledo, 777 F.2d at 542. The BIA apparently did consider all the factors presented to it by Carrillo-Bravo. Therefore, because the BIA considered all relevant factors, its decision that Carrillo-Bravo has not shown extreme hardship is not an abuse of discretion.

To be eligible under the statute for suspension of deportation, the alien applying must be of good moral character. 8 U.S.C. § 1254(a) (1). The immigration judge found that Carrillo-Bravo lacked good moral character because of his five misdemeanor convictions within a five year period and his lack of remorse.

During the hearing, the judge referred to Sec. 245(a) (4) (B) of the Immigration Reform and Control Act ("IRCA") of 1986 as providing guidance on the issue of good moral character. The BIA agreed with Carrillo-Bravo that the eligibility requirements set out in IRCA are not applicable to moral character determinations under Sec. 1254.²  The BIA, however, ruled that the judge's reference to IRCA was harmless error because the judge did not find that Carrillo-Bravo was statutorily precluded by IRCA from establishing good moral character. Instead, the judge concluded, and the BIA agreed, that Carrillo-Bravo failed to demonstrate good moral character because of his criminal record and lack of remorse.

We review the BIA's decision. If its determination was correct, then any error by the immigration judge is harmless. Canas-Segovia v. INS, No. 88-7444, slip. op. 3431, 3438 (9th Cir., April 24, 1990). The BIA in its decision acknowledged that IRCA was inapplicable to a petition for suspension of deportation and correctly based its moral character determination solely on the evidence presented by Carrillo-Bravo. Therefore, the immigration judge's reference to IRCA was harmless error.

Carrillo-Bravo has offered no proof of his good moral character and has simply tried to explain the misdemeanor convictions. While the individual charges themselves were relatively minor, the cumulative effect of five misdemeanor convictions in five years can easily lead to the conclusion that Carrillo-Bravo failed to establish good moral character. Accordingly, the BIA did not abuse its discretion in finding that Carrillo-Bravo did not establish good moral character. See Hernandez-Robledo, 777 F.2d at 542.

Section 244(e) of the Immigration and Nationality Act authorizes the Attorney General, in his discretion, to allow an alien to depart voluntarily from the United States if the alien establishes that "he is, and has been, a person of good moral character for at least five years immediately preceding his application for voluntary departure." 8 U.S.C. § 1254(e) (West Supp.1990). An alien who seeks voluntary departure bears the burden of establishing both statutory eligibility and that the equities support a favorable exercise of discretion. Villanueva-Franco v. INS, 802 F.2d 327, 329 (9th Cir. 1986).

8 U.S.C. § 1101(f) lists several per se categories of aliens who are precluded from establishing good moral character. The statute goes on to state that an alien who is not within a per se category may still be found to lack good moral character based on other reasons. 8 U.S.C. § 1104(f). "A finding that an alien was not of good moral character under Sec. 1101(f) within at least five years prior to applying for voluntary departure renders that person ineligible for voluntary departure." Villaneuva-Franco, 802 F.2d at 329.

The immigration judge found that Carrillo-Bravo's five misdemeanor convictions demonstrated a lack of good moral character pursuant to Sec. 1101(f). Therefore, Carrillo-Bravo is statutorily ineligible for voluntary departure. See id.

The BIA did not abuse its discretion in denying Carrillo-Bravo's request for suspension of deportation. Carrillo-Bravo is ineligible for voluntary departure.

AFFIRMED.