Unpublished Disposition, 923 F.2d 862 (9th Cir. 1991)

MEMORANDUM^** 

Hwang Jung Joo, a native and citizen of the Republic of Korea, petitions for review of a decision of the Board of Immigration Appeals ("BIA"). The BIA dismissed Joo's appeal and upheld the immigration judge's ("IJ") denial of Joo's requests for discretionary relief from deportation under the Immigration and Nationality Act ("Act"), 8 U.S.C. §§ 1182(i) and 1255, which would have allowed Joo to obtain permanent residence status in the United States. The BIA also upheld the IJ's denial of Joo's request for voluntary departure pursuant to 8 U.S.C. § 1254(e). We deny the petition.

DISCUSSION

Joo contends the BIA abused its discretion by dismissing his appeal and upholding the IJ's denial of his application for adjustment of status to that of a lawful permanent resident pursuant to section 245 of the Act, 8 U.S.C. § 1255. Joo sets forth a series of arguments in support of this contention. First, Joo asserts that the fraud committed upon his entry into the United States does not render him excludable, or ineligible to receive a visa, under either repealed or amended section 212(a) (19) of the Act, 8 U.S.C. § 1182(a) (19). Second, Joo claims that the fraud committed at the service interview also does not render him excludable, or ineligible to receive a visa, under amended section 212(a) (19) because it was repudiated. Third, Joo alleges that there is no evidence in the record to support a finding that he committed fraud at his deportation hearing and thus be considered excludable, or ineligible to receive a visa, under amended section 212(a) (19). Finally, Joo maintains that even if he is excludable pursuant to section 212(a) (19), he should be granted a waiver of excludability pursuant to section 212(i) of the Act, 8 U.S.C. § 1182(i). Joo concludes by arguing that, in light of several favorable equities, he is deserving of a grant of adjustment of status to that of a lawful permanent resident as a matter of discretion.

We need not decide all of these issues. The BIA is not required to consider whether the threshold statutory eligibility requirements are met if it decides that the relief should be denied as a matter of discretion. INS v. Bagamasbad, 429 U.S. 24 (1976). This is precisely what was done in this case. The BIA upheld the IJ's denial of Joo's application for an adjustment of status as a matter of discretion.¹  A determination of Joo's statutory eligibility for section 245 relief thus was never made. The BIA acted entirely within its authority in so proceeding. Id.

We review the BIA's decision denying Joo's application for adjustment of status on discretionary grounds for an abuse of discretion. Patel v. Landon, 739 F.2d 1455, 1457 (9th Cir. 1984).

We conclude that the BIA's decision was not an abuse of discretion. Each of the findings set forth by the BIA in justifying its discretionary denial is supported by the record. It is uncontested that Joo paid $5000 to an individual in Korea in order to obtain a fraudulent visa, with which he later entered the United States. It is also uncontested that Joo lied under oath at the INS interview in order to facilitate an earlier application for adjustment of status.²  Finally, the BIA's determination that Joo had a preconceived intent to remain in the United States upon entry is reasonable in light of the record. Joo testified that prior to leaving for the United States, he broke his long-term lease on his house, sold all his personal belongings, and quit his job. It was not unreasonable for the BIA to conclude that these facts clearly belied Joo's intent to remain permanently in the United States. Moreover, the BIA properly considered the countervailing equities weighing in Joo's favor, but determined that the adverse factors clearly were overriding. The BIA did not abuse its discretion.

In the alternative, Joo contends the BIA erred by upholding the IJ's denial of his request for voluntary departure pursuant to section 244(e) of the Act, 8 U.S.C. § 1254(e). An alien who can establish, among other things, good moral character for the five years preceding an application for voluntary departure may be permitted to depart voluntarily. 8 U.S.C. § 1254(e) (Supp.1990). However, it is within the BIA's discretion whether to grant or deny voluntary departure. Cunanan v. INS, 856 F.2d 1373, 1374 (9th Cir. 1988). We review a refusal to grant voluntary departure under the arbitrary and capricious standard. Hernandez-Luis v. INS, 869 F.2d 496, 499 (9th Cir. 1989).

The BIA denied Joo's request for voluntary departure on the same grounds for which it denied his application for adjustment of status. As noted above, this determination was supported by the record. Accordingly, we conclude that the BIA's denial of Joo's request for voluntary departure was not arbitrary or capricious.

PETITION DENIED.