Unpublished Disposition, 912 F.2d 469 (9th Cir. 1990)

MEMORANDUM^* 

Petitioner is a 37-year-old South Korean [hereinafter Korean] citizen who was admitted into the United States as an immigrant in June 1977. Approximately two years later, in October 1979, he pled guilty to the murder of his sister-in-law and was sentenced to a maximum term of 20-years imprisonment. He was released after serving 5 1/2 years of the sentence.

In May 1981, the INS issued an Order to Show Cause against Son, charging that he was deportable under section 241(a) (4) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1251(a) (4), as an alien convicted of a crime of moral turpitude within five years after entry and "confined therefor in a prison ... for a year or more." In May 1985, petitioner conceded deportability and applied for a waiver of deportation under section 212(c) of the Act, 8 U.S.C. § 1182(c). This application was denied both by the immigration judge and subsequently by the Board of Immigration Appeals ("BIA" or "Board"). Son now appeals from the BIA order denying his request for section 212(c) relief.¹  We affirm and deny the Petition for Review.

* In determining whether section 212(c) relief is warranted as a matter of discretion, the Attorney General

must 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 (BIA 1978). Procedurally, the alien bears the burden of showing that he merits a waiver. Matter of Duarte, 18 I & N Dec. 329 (BIA 1982). As the negative factors grow more serious, it is incumbent on him to present additional favorable evidence in his behalf which, in the case of a particularly serious crime, involves "unusual or outstanding equities." Matter of Buscemi, Interim Decision # 3058 (BIA 1988). The demonstration of such equities, however, is merely a threshold requirement; it does not compel that discretion be exercised in his favor. Id.

In the instant case, the BIA found that Son had exercised outstanding equities. The Board noted, inter alia, that he was granted an honorable discharge from the army after his murder conviction, that his wife is a United States citizen, that his entire nuclear family resides here, and that he has maintained gainful employment while completing several courses to advance his education and skills.

Nonetheless, the BIA concluded that petitioner did not merit a section 212(c) waiver of deportation for a number of reasons, principally the following: (1) that he would be returning to a country where he spoke the language, was familiar with the culture and could apply his automotive training; (2) that his wife married him knowing he might be deported; (3) any error committed by the immigration judge in the admission of evidence was harmless.

II

We review BIA decisions denying discretionary relief under section 212(c) for abuse of discretion. Vargas v. INS, 831 F.2d 906, 908 (9th Cir. 1987). Accordingly, the Board will be reversed "only if [it] fails to support its conclusions with a reasoned explanation based on legitimate concerns." Id.

III

Petitioner makes two arguments that the BIA's denial of 212(c) relief constituted an abuse of discretion. First, he claims that "the BIA failed to address the evidence in the record of the danger to Mr. Son from his sister-in-law's family if he is forced to return to Korea." However, the only "evidence" submitted by petitioner is (1) his cryptic statement before the immigration judge that because the victim's family is in Korea "it might be harmful to physically kill him [sic]," and (2) a reference to this purported fear in the "Facts" section of his BIA brief. No documentary evidence was offered, nor was this matter expressly identified as an issue for appeal. Accordingly, we do not find that the Board's failure to address the issue constituted an abuse of discretion.

Second, petitioner contends that the BIA abused its discretion by "sanction [ing] the immigration judge's failure to consider the mitigating facts surrounding the events that led to [Son's] conviction." While the Board acknowledged that "the immigration judge may have committed error in this regard," it concluded that the result of this case would not be altered by accepting petitioner's offer of proof that he killed his sister-in-law "in the course of a fight which arose because he felt that she was abusing her children." The Board noted that

even if [petitioner] was outraged by what he perceived to be mistreatment of the children, the fact remains that he killed another human being rather than resort to lawful means.... The equities he has presented simply do not outweigh this grave misdeed and crime. Our decision, therefore, will remain the same despite the possible error by the immigration judge....

It is clear, then, that the BIA considered Son's alleged mitigating circumstances but found them insufficient, when balanced against the gravity of his crime, to warrant the granting of a section 212(c) waiver. We find that this constitutes "a reasoned explanation based on legitimate concerns" for denying the relief requested. Vargas, 831 F.2d at 908. Accordingly, petitioner's abuse of discretion claim will not lie.

IV

For the foregoing reasons, we find that the BIA did not abuse its discretion in denying petitioner's application for section 212(c) waiver of deportation.

PETITION FOR REVIEW IS DENIED.