Unpublished Disposition, 861 F.2d 268 (9th Cir. 1986)

MEMORANDUM^** 

Aurora Padilla De Leon petitions for review of a Board of Immigration Appeals (BIA) order denying her application for adjustment of status. De Leon contends the BIA abused its discretion by (1) departing from established policies without making a sufficient explanation for the departure, and (2) failing to consider sufficiently all of the factors in the record. While we do not agree with all of De Leon's contentions, we do agree that the BIA erred by giving inadequate consideration to the relevant factors.

De Leon is a native and citizen of the Philippines. In January 1971, De Leon obtained a nonimmigrant visa from the U.S. Consulate in Manila. On January 30, 1971, De Leon attempted to enter the United States at Seattle, Washington. Because De Leon had only twenty dollars in her possession and did not have a return ticket to the Philippines, she was detained for an exclusion hearing under 8 U.S.C. § 1225(b). During the proceedings, De Leon asserted in a sworn statement that she had a husband and three children living in Manila. On February 3, 1971, De Leon was admitted into the United States as a visitor.

After a subsequent departure, De Leon was readmitted into the United States on March 7, 1971, and permitted to stay until August 7, 1971. On July 28, 1972, an immigration officer interviewed De Leon to determine why she had not yet left the United States. During the interview, De Leon again stated that she had a husband and three children living in Manila. The Immigration and Naturalization Service (INS) issued an order to show cause on December 12, 1972, alleging that De Leon was subject to deportation for overstaying her visa.

At a deportation hearing on January 9, 1973, De Leon admitted deportability but requested an opportunity to apply for withholding of deportation under 8 U.S.C. § 1253(h). On May 21, 1974, an immigration judge (IJ) denied De Leon's application for withholding of deportation. De Leon appealed to the BIA; the BIA affirmed the IJ's decision on May 11, 1976. However, De Leon did not depart within the period allowed by the BIA.

On August 3, 1974, De Leon married Osmundo Jordanal in Las Vegas, Nevada. Jordanal petitioned the INS to adjust De Leon's status to that of permanent resident. The INS returned the petition for proof that De Leon had divorced her Philippine husband. No such proof was submitted. De Leon and Jordanal were divorced on November 8, 1977. On May 3, 1978, De Leon married Dan Dolores. Two days later, Dolores petitioned the INS to issue an immigrant visa for De Leon. De Leon subsequently moved to reopen her deportation proceedings to permit her to apply for adjustment of status under 8 U.S.C. § 1255(a). Shortly thereafter, the BIA granted the motion to reopen and remanded the case to an IJ.

At the reopened deportation hearing, De Leon admitted that her previous statements concerning a husband and children in the Philippines were false.¹  Although the IJ noted that De Leon was statutorily eligible for adjustment of status, he denied De Leon's application on discretionary grounds. De Leon's appeal to the BIA was dismissed on August 15, 1986. De Leon filed a timely petition for review.

The BIA has discretion to adjust a nonimmigrant alien's status to that of an immigrant if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States as a permanent resident, and (3) an immigrant visa is immediately available to the alien at the time her application is filed. 8 U.S.C. § 1255(a). In addition to the burden of proving statutory eligibility, the alien has the burden of persuading the BIA to exercise its discretion favorably. Kim v. Meese, 810 F.2d 1494, 1497 (9th Cir. 1987). The BIA denied De Leon's application for adjustment of status on discretionary grounds and thus this court reviews the BIA's decision for an abuse of discretion. See Patel v. Landon, 739 F.2d 1455, 1457 (9th Cir. 1984).² 

De Leon contends that the BIA abused its discretion in denying her application for adjustment of status because it departed from established policies without adequately explaining the departure. The contention is without merit.

When, in exercising its discretion, the BIA departs from an established policy, it must reasonably explain the departure, Israel v. I.N.S., 785 F.2d 738, 740 (9th Cir. 1986). De Leon argues that in Matter of Arai, 13 I & N Dec. 494 (BIA 1970), the BIA established a policy of granting adjustment of status to statutorily eligible aliens. However, this is a misreading of Arai which states that " [i]n the absence of adverse factors, adjustment will ordinarily be granted" to eligible aliens. Arai, 13 I & N Dec. at 496. The BIA emphasized that such a decision is nonetheless "a matter of discretion." Id.³  Because there are adverse factors in De Leon's case (i.e., false statements to an IJ and to an INS officer), the BIA did not depart from any established policy by denying her application.

De Leon contends the BIA abused its discretion in denying her application for adjustment of status because it failed to sufficiently consider factors in the record that supported her application.⁴  We agree.

When exercising its discretion, the BIA must consider all relevant factors in the record and must discuss each factor in its decision. Jen Hung Ng v. I.N.S., 804 F.2d 534, 538 (9th Cir. 1986); Sullivan v. I.N.S., 772 F.2d 609, 610 (9th Cir. 1985). Cursory reference to evidence favorable to the alien does not discharge the BIA of its duty, and may constitute an abuse of discretion. See Jara-Navarrete v. I.N.S., 813 F.2d 1340, 1344 (9th Cir. 1987); Saldana v. I.N.S., 762 F.2d 824, 827, 828 (9th Cir. 1985), amended by, 785 F.2d 650 (1986); Prapavat v. I.N.S., 662 F.2d 561, 562 (9th Cir. 1981) (per curiam). The requirement of articulated findings by the BIA serves two purposes: (1) it ensures that each alien receives adequate consideration of the circumstances unique to his/her case, and (2) it provides the reviewing court with a record from which it can determine the propriety of the BIA's exercise of discretion. Sullivan, 772 F.2d at 610.

Here, the BIA dismissed the factors favorable to De Leon in a single phrase: " [e]ven considering the equities emphasized by counsel on appeal (i.e., a long lasting marriage, long residence, good moral character, communityties, inherent value of her work as a lab technician)...."⁵  This passing reference does not satisfy the BIA's duty to " 'give reasons which show that it has properly considered the facts which bear on its decision.' " Saldana v. I.N.S., 762 F.2d 824, 828 (9th Cir. 1985), amended by 785 F.2d 650 (1986), (quoting Prapavat, 662 F.2d at 562).

Furthermore, the BIA stated that De Leon presented no evidence as to her good moral character, community ties, and value as a lab technician. However, at her reopened deportation hearing, De Leon offered into evidence a letter from her employer which stated that De Leon is "of good moral character, diligent and hard working." In addition, the hearing transcript shows that De Leon answered several questions about the nature of her work, her lack of an arrest record, and her political affiliations. Accordingly, the BIA is incorrect in asserting that De Leon did not present evidence concerning her moral character and her value as a lab technician. This error suggests that the BIA did not fully consider all the evidence relevant to its exercise of discretion. Cf. Jen Hung Ng v. I.N.S., 804 F.2d 534, 540 (9th Cir. 1986) (in exercising its discretion on a motion to reopen for adjustment of status, the BIA's failure to consider an alien's gainful employment and financial responsibility was reversible error). Consequently, the BIA abused its discretion when it denied De Leon's application for adjustment of status. Cf. Jara-Navarrete v. I.N.S., 813 F.2d 1340, 1343-44 (9th Cir. 1987) (in determining whether alien's deportation would cause an undue hardship, the BIA's superficial discussion of the equities favoring suspension of deportation, and its failure to consider individually the alien's circumstances, was an abuse of discretion).⁶ 

The petition for review is GRANTED and the case REMANDED to the BIA for reconsideration.

WIGGINS, Circuit Judge, dissenting:

This case is ordered remanded to the BIA for a reconsideration of its order denying petitioner's adjustment of status. The reason for the remand, according to the majority, is that the BIA abused its discretion in failing to give proper attention to factors in the record supporting her application for relief. In particular, the majority asserts that the BIA neglected to consider evidence offered before the ILJ with respect to the good moral character of petitioner, her community ties and her value as a lab technician. On the record before us, I must dissent.

At the hearing before the ILJ, counsel for the petitioner offered a letter for the purpose of "attesting to the fact that you are working ..." A copy of the letter was shown to government counsel and it was admitted into evidence. The letter states that petitioner "is presently connected" with the employer and has a "present salary of $800 per month." It also contains the following sentence: "She is a good employee of good moral character, diligent and hard working."

The foregoing is the totality of the evidence before the ILJ with respect to the good moral character of petitioner. The balance of the record involves an extensive consideration of the misstatements made by petitioner, under oath, to secure her admission into the United States and to protect her from deportation.

On this record, the BIA was fully justified in dismissing the appeal. The evidence is overwhelming that petitioner pursued a course of conduct, commencing in 1971 when she initially entered the United States, of knowingly deceiving Immigration officials for the purpose of avoiding a return to the Philippines. The inappropriateness of exercising discretion to allow her to remain "even considering the equities emphasized by counsel on appeal" requires no explanation.

I acknowledge that this court has adopted rules requiring the articulation of reasons for administrative action. I take no exception to these rules and they should be applied in cases where the reasons cannot be fathomed from the record. This is not such a case.

I respectfully dissent.