Unpublished Disposition, 914 F.2d 1496 (9th Cir. 1988)

MEMORANDUM^** 

Jerry Cabie Pacariem, a native of the Philippines, entered the United States on March 19, 1978 as the dependent of a parent who was in the process of immigrating. He and his family resided in Hawaii. On June 23, 1982, a jury in a Hawaiian state court convicted Pacariem of attempted murder and reckless endangerment. Pacariem received a sentence of eight years in prison; he was released on parole after serving six years.

In February 1985, while Pacariem was in prison, the Immigration and Naturalization Service ("INS") instituted deportation proceedings against him. On April 26, 1985, after a hearing, the presiding Immigration Judge ("IJ") found Pacariem deportable under Sec. 241(a) (4) of the Immigration and Nationality Act, which provides for deportation of an alien who

is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefore in a prison or corrective institution, for a year or more....

8 U.S.C. § 1251(a) (4). At the hearing, Pacariem sought relief under Sec. 212(c), which provides for discretionary waiver of deportation, under certain circumstances, for aliens who have been domiciled in the United States for seven years. See 8 U.S.C. § 1182(c); see also Tapia-Acuna v. INS, 640 F.2d 223, 224-25 (9th Cir. 1981) (extending Sec. 212(c) beyond its literal boundaries to otherwise eligible deportable aliens who have not interrupted their United States residence). After considering several proffered reasons why Pacariem should receive the benefit of Sec. 212(c), the IJ denied the request. Pacariem appealed to the Board of Immigration Appeals ("BIA"), which affirmed the decision.

Pacariem now appeals to this court. He concedes that he qualified as deportable under Sec. 241(a) (4), that the relief he sought under Sec. 212(c) is discretionary rather than mandatory, and that he had the burden of showing why he should receive that relief. He argues that the BIA erred in not finding him worthy of Sec. 212(c) relief. We have jurisdiction to review the BIA's final order of deportation. See 8 U.S.C. § 1105(a). We review the BIA decision for abuse of discretion, and may set aside its denial of Sec. 212(c) relief "only if the Board fail [ed] to support its conclusions with a reasoned explanation based upon legitimate concerns." Vargas v. Dept. of Immigration and Naturalization, 831 F.2d 906, 908 (9th Cir. 1987). Having reviewed the BIA decision with this standard in mind, we affirm.

The BIA considered all of the favorable factors that Pacariem put forward. It noted inter alia that he was relatively young when convicted, that he had no other criminal record, that a prison report described his behavior as "beyond reproach," that he had an offer of employment upon release and planned to complete a high school degree, and that his parents, siblings, wife and children were all residents of the United States. See In re Pacariem, slip op., 4-5 (BIA May 6, 1988). Cf. Mattis v. INS, 774 F.2d 965, 968-69 (9th Cir. 1969) (reversing a BIA decision as abuse of discretion because Board disbelieved uncontroverted evidence that was not inherently incredible, and ignored other proffered evidence).

However, the BIA reasoned that the factors in Pacariem's favor, while "substantial," did not constitute "unusual or outstanding equities," which, under guidelines adopted by the BIA, Pacariem needed to show in order to counterbalance the "serious criminal misconduct" that warranted his deportation under Sec. 214(a) (4). See id. at 5 (citing Matter of Buscemi, No. A-30820784, Interim Decision 3058 (BIA 1988), 1988 BIA LEXIS 18; Matter of Marin, 16 I & N Dec. 581 (BIA 1978)). According to the BIA, Pacariem's wife and children do not rely upon him for support, and he has distant relatives who still live in the Philippines; in addition, Pacariem had not demonstrated rehabilitation to the Board's satisfaction. Although we might have concluded that the equities in favor of Pacariem outweighed those against him, we cannot say that the BIA failed to support its conclusion with a "reasoned explanation based upon legitimate concerns." Vargas, 831 F.2d at 908.

Pacariem argues that the BIA's minimum standards for discretionary relief under Sec. 212(c)--to wit, a showing of "unusual or outstanding equities" and rehabilitation if the alien has engaged in "serious criminal misconduct"--are too restrictive. Given that those standards apply to the exercise of the BIA's own statutorily authorized discretion, we cannot agree. We show "considerable deference" to the BIA's interpretations of the statutes it administers, see Mahini v. INS, 779 F.2d 1419, 1420 (9th Cir. 1986); a fortiori, we should show that same deference to the BIA's decisions about how best to use its discretion.

Pacariem also argues that, even if the standards were appropriate, the BIA misapplied them in his case; he contends that he demonstrated "unusual or outstanding equities" and rehabilitation. We must dispose of this argument as we did the previous one. It is for the BIA to determine what facts satisfy the standards it adopts for granting discretionary relief. Moreover, a showing of outstanding equities would not guarantee Pacariem relief; it would merely satisfy "the threshold test for ... a favorable exercise of discretion." Buscemi, 1988 BIA LEXIS at * 14. Pacariem has made no attempt to show that the facts of his case are indistinguishable in relevant respects from those of other cases in which relief was granted. We therefore are not in a position to hold that the BIA applied its standards to Pacariem in an arbitrary way.

Pacariem also contends that the IJ erred by not inquiring into certain matters, such as the prospect of employment in the Philippines and the age and educational background of Pacariem's wife. However, as Pacariem concedes, the burden of demonstrating that he was worthy of discretionary relief was squarely upon him. Since he declined to introduce these and other factors that may have enhanced his case for relief, we cannot say that the IJ erred by not considering them.¹ 

The BIA's decision is AFFIRMED, and Pacariem's petition for review is DENIED.