Unpublished Disposition, 895 F.2d 1416 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1416 (9th Cir. 1990)

Rodrigo ANTILLON-MACIAS, Petitioner,v.IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 89-70237.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 7, 1990.* Decided Feb. 9, 1990.

Before CANBY, BRUNETTI and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Rodrigo Antillon-Macias petitions for review of the Board of Immigration Appeals' (BIA) order denying his application for suspension of deportation and voluntary departure. He contends that the BIA erred in finding that he failed to maintain seven years of continuous physical presence in the United States as required under 8 U.S.C. § 1254(a) (1). He further contends that the BIA abused its discretion in finding him ineligible for voluntary departure. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a) (1988). We grant the petition and affirm in part and reverse and remand in part.

We review the BIA's finding of statutory ineligibility for suspension of deportation under a substantial evidence standard. See Hernandez-Luis v. INS, 869 F.2d 496, 498 (9th Cir. 1989). We review the BIA's denial of voluntary departure for an abuse of discretion. See id. at 499. The BIA's exercise of discretion must not have been arbitrary or capricious. See id.

An alien seeking suspension of deportation must establish that he has been physically present in the United States for a continuous period of at least seven years. 8 U.S.C. § 1254(a) (1). Brief, casual, and innocent departures which do not meaningfully interrupt an applicant's presence do not cause an applicant to fail to maintain continuous presence. 8 U.S.C. § 1254(b) (2); DeGurules v. INS, 833 F.2d 861, 862 (9th Cir. 1987). " [A] voluntary departure under threat of coerced deportation is not a brief, casual, and innocent absence from the United States." Hernandez-Luis, 869 F.2d at 498.

Here, Antillon-Macias' departures were not "brief, casual, and innocent." See id. He has been apprehended by immigration officials on three or four occasions, most recently in October of 1983. Following each arrest, he was allowed to return to Mexico under an administrative voluntary departure. After each departure, he reentered the United States after only three or four days.

The record thus substantially supports the BIA's finding that Antillon-Macias' alleged "voluntary" departures were coerced by the threat of deportation, see Barragan-Sanchez v. Rosenberg, 471 F.2d 758, 760 (9th Cir. 1972), and therefore, he has failed to meet the continuous physical presence requirement of section 1254(a) (1). See Hernandez-Luis, 869 F.2d at 498. We affirm the denial of suspension of deportation.

Antillon-Macias also contends that the BIA erred in finding him ineligible for voluntary departure. An applicant for voluntary departure must demonstrate that he is, and has been, of good moral character for at least five years preceding the application for voluntary departure. 8 U.S.C. § 1254(e); Villanueva-Franco v. INS, 802 F.2d 327, 329 (9th Cir. 1986). Persons convicted of a crime involving moral turpitude during the five-year period are precluded from establishing good moral character. 8 U.S.C. §§ 1101(f) (3), 1182(a) (9) (1988); see United States v. Villa-Fabela, 882 F.2d 434, 439-40 (9th Cir. 1989). "Theft is a crime of moral turpitude." Id.

The BIA found that Antillon-Macias had been convicted of theft and larceny and therefore lacked good moral character. It is unclear from the record, however, that Antillon-Macias has ever actually been convicted of those crimes. There is no evidence to support such a finding by the BIA. Therefore, we find that the BIA erred in determining that Antillon-Macias lacked good moral character for having been convicted of a crime involving moral turpitude.1 

The BIA's order is AFFIRMED IN PART and REVERSED and REMANDED IN PART.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Therefore, Antillon-Macias' request for oral argument is denied

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

While the BIA may deny voluntary departure on discretionary rather than statutory grounds, see Villanueva-Franco, 802 F.2d at 330, it must consider all factors, both favorable and unfavorable, which are relevant to whether an applicant has established good moral character, Torres-Guzman v. INS, 804 F.2d 531, 533-34 (9th Cir. 1986). The BIA focused exclusively on Antillon-Macias' criminal record and there is no indication that it heard or considered any factors favorable to Antillon-Macias. Therefore, the BIA did not deny voluntary departure on the alternative discretionary ground