Unpublished Disposition, 878 F.2d 386 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 386 (9th Cir. 1989)

Alejandro LIMOSNERO, Petitioner,v.IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 88-7294.

United States Court of Appeals, Ninth Circuit.

Submitted*  May 3, 1989.Decided June 21, 1989.

Before FLETCHER, NELSON and WILLIAM A. NORRIS, Circuit Judges.


MEMORANDUM** 

Alejandro Limosnero appeals a decision by the Board of Immigration Appeals ("BIA") affirming an immigration judge's ("IJ") denial of relief from deportation under Section 212(c) of the Immigration and Naturalization Act ("Act"), 8 U.S.C. § 1182(c). The issue on appeal is whether the BIA abused its discretion in denying relief. We find an abuse of discretion, vacate the order of the BIA, and remand for further proceedings.

FACTS

The facts as found in the administrative record are as follows. Limosnero was born in the Philippines in 1959. He was lawfully admitted for permanent residence in 1974, when he was fourteen years old. His parents and nine siblings are all United States citizens or lawful permanent residents. The entire family lives in or around Salinas, California. Limosnero is single and has no dependents. He has usually lived with his parents and contributed to the household budget and chores. He has maintained steady seasonal employment as a forklift driver, and his supervisor has a high opinion of him.

In 1986, Limosnero was convicted in California Superior Court for possession of cocaine, in violation of Cal.Health & Safety Code Sec. 11350. Limosnero was sentenced to a term of jail and probation. The state trial judge recommended against deportation. Limosnero has a record of drug-related offenses going back to approximately 1978. These offenses involve possession of controlled substances, public drunkenness and driving under the influence. Although Limosnero has a clear substance abuse problem, no evidence on the record suggests he has ever been involved in distribution, sale or smuggling of controlled substances.

After the state court conviction, Limosnero was charged with deportability under Section 241(a) (11) of the Act, 8 U.S.C. § 1251(a) (11). Limosnero conceded deportability and applied for a waiver of deportation under Section 212(c) of the Act, 8 U.S.C. § 1182(c). The IJ determined that Limosnero did not qualify for a waiver, and the BIA affirmed the IJ's decision. Limosnero timely appeals.

ANALYSIS

Limosnero argues that the BIA abused its discretion in denying him a waiver of deportation under Section 212(c).1  BIA decisions denying discretionary relief from deportation are reviewed under the abuse of discretion standard. Vargas v. INS, 831 F.2d 906, 908 (9th Cir. 1987). The BIA abuses its discretion if it fails to support its conclusions with a reasoned explanation based on legitimate concerns. Id. It must state its reasons and show a proper consideration of all favorable and unfavorable factors when weighing the equities. Mattis v. INS, 774 F.2d 965, 968 (9th Cir. 1985). This court may find an abuse of discretion when the BIA distorts or disregards an important aspect of the petitioner's claim. De la Luz v. INS, 713 F.2d 545 (9th Cir. 1983) (IJ abused discretion by viewing as negative factors petitioner's large family and failure to work because she was caring for her children).

The BIA has articulated the relevant factors that are to guide the IJ's discretion. The factors which weigh in favor of waiving deportation are family ties, length of residence in the United States, entry into this country at a young age, expected hardship to the petitioner or his family if he is deported, service in this country's military, employment, business or property ties, value and service to the community, proof of genuine rehabilitation, and any other favorable character evidence. The negative factors are the nature and circumstances of the crime, any additional significant immigration violations, the nature, recency and seriousness of the petitioner's criminal record, and any other negative character evidence. Matter of Buscemi, Interim Decision # 3058 at 8 (BIA 1988); Matter of Marin, 16 I & N Dec. 581, 584-85 (BIA 1978).

The more serious the negative factors, the more favorable the offsetting evidence needs to be. In some extreme cases, the favorable factors must amount to "unusual or outstanding equities" before a favorable exercise of discretion will even be considered. Buscemi, supra at 8. This heightened showing is required when the alien has been convicted of "a serious drug offense, particularly one relating to the trafficking or sale of drugs." Id.

The IJ appears to have considered as primary favorable factors Limosnero's long residence in the United States, commencing at an early age, as well as his substantial family ties here. On the other side of the scale, the IJ considered Limosnero's criminal record, emphasizing that his convictions were drug and alcohol related. The IJ determined that the balance weighed in favor of deportation. He also noted, apparently as an additional negative factor, that "there is no real evidence of a genuine rehabilitation."

A divided panel of the BIA affirmed the IJ. On his appeal to the BIA, Limosnero argued that the IJ weighed his controlled substance offenses too heavily by failing to distinguish trafficking from possession; that he had not used drugs for the past eight months; and that after his release from confinement he intended to enroll in a treatment center. He argued that these factors demonstrated sufficient rehabilitation to warrant relief.

The majority set out a standard for the exercise of discretion consistent with its prior holdings in Buscemi and Marin, but added as an additional favorable factor the state criminal court judge's recommendation against deportation. However, the majority appears to have extended the situations in which an alien will be required to demonstrate "unusual or outstanding equities." The majority noted that driving under the influence endangers the public, that Limosnero had many recent criminal violations, and that Limosnero's cocaine possession offense occurred while he was on probation. These factors, according to the majority, serve to make Limosnero as serious an offender as a drug trafficker and therefore subject to the higher threshold-showing requirement.

The majority listed as favorable the following facts: Limosnero's family ties, relatively long residence in the United States, the possible hardship to Limosnero and his family if he were deported, his history of steady employment, the recommendation of the criminal court judge, his expressed reformation, and the numerous positive character references from family, friends, and acquaintances. However, the majority was skeptical of Limosnero's claim of rehabilitation:

In regard to the factor of rehabilitation, however, we must consider the respondent's recidivism, including offenses of recent date, and his probation violation. Moreover, little weight can be given to the respondent's claim that he no longer is abusing drugs, as we note that he testified to a serious substance abuse problem and indicates on appeal that he has not yet entered a treatment facility. Given this background, we cannot conclude that the respondent's expressed intent to reform himself and the positive character references which he provided adequately establish genuine rehabilitation.

BIA decision at 6 (emphasis added).

The majority concluded that Limosnero failed to demonstrate unusual and outstanding equities, and was therefore not worthy of consideration for the exercise of favorable discretion. The majority also indicated its belief that even if Limosnero satisfied this threshold, he would not merit discretionary relief. However, the majority did not perform a weighing of positive against negative in reaching its alternate conclusion.2 

Limosnero's first argument is that the BIA misconstrued facts relevant to his claim of rehabilitation. While rehabilitation is an important factor for an applicant with a criminal record to show, the IJ must not rule out relief on the basis of this factor alone when the applicant is still imprisoned or only recently convicted. Matter of Salmon, 16 I & N Dec. 734, 737-38 (BIA 1978) (but noting that such individuals will have a more difficult task in achieving relief).

Limosnero asserts that the BIA mischaracterized the facts when it said he had not entered a drug treatment plan. As he notes, he was confined in INS detention at the time of his hearing before the IJ, and thus it was physically impossible for him to obtain treatment at that time. Although the BIA stated that Limosnero "indicate [d] on appeal" that he had not entered into treatment, no brief was filed on his behalf at that appeal.

Limosnero is therefore correct in asserting that the record is silent as to whether he entered into treatment after his release from INS custody. Rehabilitation is an important aspect of Limosnero's claim. The BIA distorted the evidence on this issue by treating Limosnero's silence on the treatment issue as an admission that he was receiving no treatment. Such a distortion on a critical issue is an abuse of discretion. De la Luz v. INS, 713 F.2d at 545.3 

Limosnero's second argument is that the BIA acted inconsistently in finding that he failed to demonstrate "unusual or outstanding equities," where it reached a contrary conclusion on weaker favorable facts in Matter of Buscemi, Interim Decision # 3058 (BIA 1988). In Buscemi, the BIA found that the alien had demonstrated unusual or outstanding equities where his parents and four siblings all resided in the United States, he helped support the family (although they would have been able to make it without his contributions), he was close to his family, and he had resided in the United States for many years (although he and his family had twice tried to reestablish themselves in Italy, without success).4 

Limosnero's equities, measured against this scale, are clearly of equivalent if not greater weight. Whereas Buscemi's father was no longer part of the household, Limosnero's parents are together and he is close to both of them. Nine siblings live nearby. Limosnero has lived in the United States approximately as long as Buscemi, but without interruptions. The BIA decided Buscemi just three months before it considered Limosnero's appeal, but it did not explain its disparate treatment of these two factually similar cases, even though this problem was expressly pointed out by the dissenting member of the panel.

In Israel v. INS, 785 F.2d 738, 740 (9th Cir. 1986), we held that " [t]he BIA acts arbitrarily when it disregards its own precedents and policies without giving a reasonable explanation for doing so." In Israel, the alien moved to reopen her deportation hearing to allow consideration of her application for adjustment of status based on her recent marriage (entered into after she had been found deportable). The IJ denied her motion5  and the BIA dismissed her appeal. In a previous decision, Matter of Garcia, 16 I & N Dec. 653 (BIA 1978), the BIA had been confronted with essentially identical facts. It held that proceedings should generally be reopened in such cases where the adjustment application is "prima facie approvable." Id. at 657. We held that the BIA abused its discretion in treating these factually similar cases differently, noting that the legally relevant facts in both cases were identical. Israel, 785 F.2d at 741.

Limosnero concedes that the BIA in his case noted that even if he were found to have met the threshold test, it would not have ruled in his favor. However, the BIA failed to articulate the reasons it would have so acted. Nowhere in its opinion does it actually conduct the weighing required by Marin and Buscemi.

The BIA's analysis of Limosnero's criminal record is insufficient to satisfy this requirement of articulation. The respondent's criminal record is the only element involved in triggering the threshold of "unusual or outstanding equities." However, it is only one of many negative factors to be weighed once the threshold is met. Additionally, the very fact that the BIA considered Limosnero's "equities" to be not unusual or outstanding suggests that any purported weighing which assumed arguendo that the equities were unusual or outstanding is inherently suspect. We cannot find on this record that such an alternative weighing was actually performed. We have disapproved of BIA analyses which find against the alien whatever the applicable standard, where the analyses fail to make clear that the BIA properly analyzed the facts in light of the correct standard. Arteaga v. INS, 836 F.2d 1227, 1229 (9th Cir. 1988).6  The BIA's failure to articulate reasons for its alternate holding prevents us from affirming its decision on that basis. Mattis v. INS, 774 F.2d 965, 968 (9th Cir. 1985).

Finally, Limosnero argues that the BIA improperly weighed his criminal record by failing to distinguish between simple possession and use-related offenses and trafficking offenses, without reflecting that the former are less the result of a criminal mind than the result of controlled substance dependency. We find merit in this argument. Both Buscemi and Marin, on which the BIA relied, involved individuals who had been convicted of offenses involving the sale of illegal drugs. Marin, supra, at 582; Buscemi, supra, at 2. We do not mean to gloss over the seriousness of alcohol and drug dependency, especially when combined with an inability or unwillingness to achieve rehabilitation. However, we think there is a significant difference in culpability between use-related offenses and trafficking offenses. The BIA should have taken account of the fact that Limosnero's drug-related offenses arose from addiction and did not involve selling drugs to others. This fact, properly weighed, should be considered in light of all the other factors in this case. Limosnero has been a permanent legal resident of the United States from his early teens. His large, immediate family all live in the United States. The INS in exercising its discretion should consider whether it should shift the burden of the problems presented by a drug-dependent person to the Philippines under these circumstances.

CONCLUSION

The BIA abused its discretion in finding that Limosnero failed to demonstrate unusual and outstanding equities, in finding without evidence on the record that he had failed to demonstrate rehabilitation, and in weighing his use-related offenses as serious negative factors without considering that the offenses were the result of addiction and did not involve the sale of drugs. We therefore grant Limosnero's petition for review, vacate the order of the BIA and remand the case for further proceedings consistent with this disposition. Limosnero shall be afforded the opportunity to present evidence of rehabilitation after his release from INS detention.

PETITION GRANTED; VACATED AND REMANDED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Cir.Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Circuit Rule 36-3

 1

Although Section 212(c) applies facially only to exclusion proceedings, it has been interpreted to apply to deportation proceedings as well. Tapia-Acuna v. INS, 640 F.2d 223, 224 (9th Cir. 1981)

 2

One member dissented, believing favorable discretion was warranted. The dissenting member considered Limosnero's equities to be "outstanding," and faulted the majority for failing to distinguish its prior decisions in Marin and Buscemi. The dissent also noted that Limosnero's criminal convictions were almost all misdemeanors, flowing not from a criminal disposition but from Limosnero's drug and alcohol addictions. Given these circumstances, the dissent argued that Limosnero's outstanding equities should overcome or balance his criminal history, entitling him to a favorable exercise of discretion

 3

The BIA's determination that Limosnero had not sought rehabilitation also fails the substantial evidence test under which we review the factual findings underlying BIA decisions withholding deportation, because there was no evidence before the BIA supporting its statement. Arteaga v. INS, 836 F.2d 1227, 1228 (9th Cir. 1988)

 4

Although relief was ultimately denied Buscemi, for purposes of comparison we note that Buscemi's crimes were attempted sale of heroin and attempted robbery, and that Buscemi, having resumed drug use, had clearly failed at rehabilitation

 5

Rulings on motions to reopen are, like section 212(c) motions, discretionary. Israel, 787 F.2d at 740

 6

The INS does not provide a counterargument, merely asserting that the BIA's statement of an alternative ground for denial of relief is sufficient to moot any argument based on similarities to Buscemi. The INS does not respond to Limosnero's argument that this type of analysis is flawed