Unpublished Disposition, 911 F.2d 738 (9th Cir. 1987)
Annotate this CaseJose Fernando SEIJO-BORGO, Petitioner,v.U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 89-70223.
United States Court of Appeals, Ninth Circuit.
Submitted July 6, 1990.* Decided Aug. 7, 1990.
Before MERRILL, KILKENNY and DAVID R. THOMPSON, Circuit Judges.
MEMORANDUM**
Jose Fernando Seijo-Borgo ("Seijo-Borgo"), a native and citizen of Peru who was admitted to the United States as a lawful permanent resident on December 7, 1977, petitions for review of the Board of Immigration Appeals' ("BIA") order dismissing his appeal from the immigration judge's ("IJ") decision finding him deportable and denying his request for waiver of deportation pursuant to section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c). We affirm the Board's dismissal of Seijo-Borgo's appeal.
FACTS
At a March 13, 1987 hearing, Seijo-Borgo, through his counsel, conceded deportability but requested a waiver pursuant to INA Sec. 212(c), 8 U.S.C. § 1182(c). Deportability was based upon a 1979 conviction for transportation/sale of cocaine in violation of California Health and Safety Code Sec. 11352(a). The proceedings were continued to May 5, 1987 for a hearing on the merits of Seijo-Borgo's application for discretionary relief. At the resumed hearing on May 5, 1987, Seijo-Borgo's counsel stated that Seijo-Borgo could not be present because he was being detained pursuant to arrest on charges of cocaine distribution. The IJ again continued the proceedings until August 4, 1987. At the August 4, 1987 hearing, Seijo-Borgo's counsel told the IJ that Seijo-Borgo had pleaded guilty to "knowingly and intentionally distributing cocaine,"1 and was unable to attend the hearing because he was in custody awaiting sentence. At this hearing, counsel for the Immigration Service submitted a certified copy of conviction showing that Seijo-Borgo had pleaded guilty to uttering a forged United States Treasury check for $2,860.00 in violation of 18 U.S.C. § 510(a) (2). The IJ denied section 212(c) relief and ordered Seijo-Borgo deported to Peru. Seijo-Borgo appealed this decision to the BIA. The BIA dismissed the appeal, and Seijo-Borgo filed a timely petition for review in this court.
ANALYSIS
This court reviews decisions denying discretionary relief from deportation under the abuse of discretion standard. INS v. Abudu, 485 U.S. 94, 105 (1988); Vargas v. INS, 831 F.2d 906, 908 (9th Cir. 1987) (citations omitted). A BIA decision denying relief should only be set aside where the Board fails to support its conclusions with a reasoned explanation based on legitimate concerns. See Vargas, 831 F.2d at 908. The BIA's decision must reflect a weighing of both favorable and unfavorable factors. De La Luz v. INS, 713 F.2d 545, 545 (9th Cir. 1983) (per curiam) (citation omitted).
Seijo-Borgo contends that a proper weighing of the factors in his case should have yielded a favorable exercise of discretion by the BIA and a grant of relief from deportation under INA Sec. 212(c), 8 U.S.C. § 1182(c). As evidence in support of his claim for relief from deportation, Seijo-Borgo cites his long residence in this country, his family ties, favorable employment prospects in the United States, and the lack of family, a home or a job in his native country. Seijo-Borgo states that his wife and two children reside with him in the Seattle area, and his mother resides in California, and that conversely, he has no immediate family in Peru.2 In general, he asserts that his family will suffer hardship if he is deported.
The factors cited by Seijo-Borgo are not strongly favorable enough to warrant a waiver, when considered in relation to the negative factors. The strong negative factors noted by the BIA were Seijo-Borgo's criminal convictions. The BIA recited Seijo-Borgo's criminal record, which includes the 1979 state conviction for transportation/sale of cocaine, the 1985 federal conviction for uttering a forged U.S. Treasury check, and the 1987 federal conviction for distribution of cocaine.3 The Board also noted that Seijo-Borgo had demonstrated no community involvement or property ownership in the United States, and that he is relatively young, fluent in Spanish, and thus readily employable.4
The BIA concluded that while Seijo-Borgo's deportation would result in some hardship, the Board found that the equities presented by Seijo-Borgo were outweighed by adverse factors militating against a favorable exercise of discretion. We agree. The unfavorable factors clearly outweigh the favorable factors. Further, although Seijo-Borgo asserts that he can be rehabilitated, and presents a letter dated September 27, 1985 from Conquest Center, a residential drug treatment program, to support this assertion, his 1987 conviction for distribution of cocaine, as noted by the BIA, clearly evidences a lack of true rehabilitation.
We conclude that the BIA did not err in denying Seijo-Borgo's request for relief from deportation. See Vargas, 831 F.2d at 909; Matter of Buscemi, Int.Dec. No. 3058 at 11 (BIA 1988); Matter of Marin, 16 I & N Dec. 581, 584-85 (BIA 1978).5
CONCLUSION
Seijo-Borgo's petition for review is DENIED and the decision of the BIA is AFFIRMED.
The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 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 9th Cir.R. 36-3
The record discloses that on September 21, 1987, pursuant to Seijo-Borgo's plea of guilty to the cocaine distribution charge on June 26, 1987, a judgment of conviction was entered convicting Seijo-Borgo of violations of 21 U.S.C. §§ 841(a) and 841(b) (1) (C). Seijo-Borgo was sentenced to six years of imprisonment plus three years of supervised release
The Board noted, however, the INS's claim that Seijo-Borgo's wife and children are not lawfully residing in the United States
Neither the Board nor the IJ noted two earlier misdemeanor convictions for shoplifting and drunk driving
The IJ failed to consider both favorable and unfavorable factors and denied the requested relief solely on the ground of Seijo-Borgo's criminal record. However, because the BIA conducted the proper weighing, listing all of the favorable and unfavorable factors in Seijo-Borgo's case, the IJ's failure to consider all of the evidence constitutes harmless error. See Rodriguez-Rivera v. U.S. Dept. of Immigration & Naturalization, 848 F.2d 998, 1002-03 (9th Cir. 1988)
Seijo-Borgo was not present during the hearings conducted by the IJ or the BIA. He mentions this fact but does not raise it as an appealable issue. His counsel was present at both hearings, however, and Seijo-Borgo has made no showing of prejudice. See Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988)
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