Unpublished Disposition, 920 F.2d 936 (9th Cir. 1990)

MEMORANDUM^* 

The Immigration and Naturalization Service ("INS") issued an Order to Show Cause against Maria de Jesus Castro De Din after finding her eligible for deportation pursuant to 241(a) (11) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1251(a) (11) as an alien convicted of a narcotics-related offense. At deportation proceedings, Castro admitted the allegations and conceded that she was eligible for deportation. She applied for a waiver from deportation pursuant to Sec. 212(c)¹  of the Act. The immigration judge denied her waiver application and the Board of Immigration Appeals ("BIA") affirmed. We review the BIA's determination for abuse of discretion. See Vargas v. INS, 831 F.2d 906, 908 (9th Cir. 1987).

The question presented is whether the BIA abused its discretion in denying Castro a waiver. We hold that it did not.

We reject Castro's claim that because she showed outstanding equities, she was entitled to a waiver. Even with proof of outstanding equities, the government is not required to grant a waiver. Rather, the immigration judge and the BIA may deny an application so long as their decision is supported by a "reasoned explanation based upon legitimate concerns." Vargas, 831 F.2d at 908.

As judicial precedent makes clear, drug convictions constitute a serious offense that militates against the granting of a waiver. See Vargas, 831 F.2d at 909; Ramirez-Ramos v. INS, 814 F.2d 1394, 1397 (9th Cir. 1987). As the INS points out, Congress has expressed hostility toward aliens convicted of drug-related offenses. See Respondent's Brief at 16 (citing Anti-Drug Abuse Act of 1988, Pub. L. 100-690, Subtitle J, Secs. 7342, 7343(a) (2), 102 STAT. 4469, 4470 (1988) (amending Sections 101(a), 242(a) of the Act, 8 U.S.C. §§ 2202(a), 1252(a)). After hearing and considering Castro's evidence, the BIA properly concluded that Castro's criminal history² , coupled with her two heroin convictions³  justified a denial of the waiver. See Vargas, 831 F.2d at 909 (holding that BIA did not abuse its discretion in denying waiver considering the "serious nature" of alien's heroin possession conviction); Ramirez-Ramos, 814 F.2d at 1397 (denying waiver application of alien convicted of drug offense).

We also hold that the BIA did not abuse its discretion in accepting the immigration judge's finding that Castro's testimony regarding her criminal convictions was not credible. The immigration judge had found implausible Castro's claim that, as a victim of mild retardation, she either was incapable of having the specific intent to commit the narcotics crimes or that she was manipulated by her children, who convinced her to plead guilty.⁴ 

As the BIA recognized, the immigration judge's credibility finding is entitled to substantial deference. See Sarvia-Quintanilla, 767 F.2d at 1395 (stating that an immigration judge is "uniquely qualified to decide whether an alien's testimony has about it the ring of truth."). Castro's claim that she pled guilty to protect her children is dubious. Even if her claim were true, lying to the court and shielding a criminal from the criminal justice system does not speak well of her honesty. Moreover, although Castro presented psychiatric testimony to support her claim, we find no indication that the immigration judge or the BIA did not consider such testimony. The fact that they discarded it as not sufficiently probative was not an abuse of discretion. See Vargas, 831 F.2d at 908 (a BIA decision should be set aside only if the board "fails to support its conclusion with a reasoned explanation based upon legitimate concerns.").

We also reject Castro's claim that she should be granted a waiver because she will suffer extreme hardship if deported to Mexico. Given Castro's advancing age and extended family network in the United States, it is likely that she will have a significantly more difficult life if deported to Mexico. Nevertheless, although an alien's hardship may be considered in balancing the equities, it is not dispositive. See Ramirez-Ramos, 814 F.2d at 1398 (stating that BIA need not consider merits of probable persecution claim where alien has been convicted of serious crime in the United States). Given her felony offenses, it was not unreasonable for the BIA to conclude that despite her hardship, her continued presence in the United States was not in the best interest of the country.

The BIA's determination is therefore AFFIRMED.