Joseph Tan Bitong, Petitioner, v. Immigration and Naturalization Service, Respondent, 99 F.3d 1145 (9th Cir. 1996)

MEMORANDUM^** 

Joseph Tan Bitong, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals' ("BIA") dismissal of his appeal from an Immigration Judge's ("IJ") decision finding him deportable as charged and denying his application for suspension of deportation pursuant to 8 U.S.C. § 1254(a) (1). Bitong's deportation was based on his failure to comply with the conditions of his nonimmigrant status.

Decisions denying suspension of deportation are reviewed under the abuse of discretion standard. Tukhowinich v. INS, 64 F.3d 460, 463 (9th Cir. 1995); Casem v. INS, 8 F.3d 700, 702 (9th Cir. 1993) (waiver of deportation). That standard requires the BIA to take into account all relevant factors without acting in an arbitrary, illegal, or irrational fashion. Casem, 8 F.3d at 702.

First, the BIA properly adopted the decision of the IJ. Alaelua v. INS, 45 F.3d 1379, 1382 (9th Cir. 1995) ("When the BIA clearly incorporates the IJ's opinion ... we treat the IJ's statement of reasons as the BIA's and review the IJ's decision for abuse of discretion."). Second, the IJ carefully recited the proper factors bearing upon this discretionary decision, then explained why he thought the better exercise of discretion on these facts was to deny relief. Hassan v. INS, 927 F.2d 465, 468 (9th Cir. 1991).

Accordingly, the BIA did not abuse its discretion, as it fully considered the totality of circumstances; that it did not consider Bitong's asthmatic condition and lengthy residence sufficient does not affect our decision. Tukhowinich v. INS, 64 F.3d at 463; Hassan v. INS, 927 F.2d 564, 468 (9th Cir. 1991).

The petition for review is DENIED.