Unpublished Disposition, 919 F.2d 145 (9th Cir. 1990)

MEMORANDUM^** 

Junne Kyoo Koh appeals a decision by the Board of Immigration Appeals affirming the Immigration Judge's decision to deny Koh's request for a waiver of excludability under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c). See Tapia-Acuna v. INS, 640 F.2d 223, 224-25 (9th Cir. 1981). Koh concedes deportability under 8 U.S.C. § 1251(a) (4) for committing a crime involving moral turpitude within five years of entry to the United States for which he was sentenced to confinement for a year or more. Thus, the only issue on appeal is whether the Board abused its discretion in denying Koh's section 1182(c) request. We affirm the decision of the Board.

In 1984 Koh was sentenced to 123 months imprisonment for second degree murder. The INS initiated deportation proceedings against him, and after a hearing, the presiding Immigration Judge found Koh deportable and denied Koh relief from deportation under section 1182(c). The Board affirmed the decision.

We have jurisdiction to review the Board's final order of deportation. 8 U.S.C. § 1105a(a). We may set aside a denial of relief "only if the Board failed to support its conclusions with a reasoned explanation based upon legitimate concerns." Vargas v. Department of Immigration & Naturalization, 831 F.2d 906, 908 (9th Cir. 1987).

The relief afforded by section 1182(c) is discretionary, and the petitioner bears the burden of demonstrating that discretion should be exercised in her or his favor. Matter of Marin, 16 I. & N. Dec. 581, 583, 587 (1978). The judge must balance facts evidencing an alien's undesirability as a permanent resident against the social and humane considerations favoring a waiver of deportability. Id. at 584. Where the alien has been convicted of a serious crime, like murder, the alien must demonstrate "unusual or outstanding equities" to merit relief under section 1182(c). Id. at 585; Matter of Buscemi, Int. Dec. 3058 at 8 (1988).

Koh first claims that the Board failed to consider his long history of employment and long residence from an early age, factors set forth by the Board as favorable in Matter of Marin. The record reflects the Board's consideration of this claim.

Koh also contends that the Board failed to give a rational explanation for why it found no unusual and outstanding equities in this case while it had found them under similar or less favorable circumstances in Buscemi, Int. Dec. 3058. We understand but reject the argument. The facts in Buscemi differ sharply from those present here. In Buscemi, the alien had resided in the United States for a much longer time (seventeen years) and had entered the country at a much younger age (nine). As we noted above, the Board considered these factors.

Finally, Koh contends that the Board's characterization of his suicide attempt as indicative of a lack of rehabilitation was an inference not supported by the evidence. We disagree. The Board referred to the suicide attempt as indicative of aberrant behavior. It also noted Koh's attempt to escape. The burden of showing rehabilitation is on Koh. Marin at 588. He failed to carry it.

PETITION DENIED.