Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1991)

MEMORANDUM^** 

Migual Martinez-Perez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") decision denying his application for voluntary departure under 8 U.S.C. § 1254(e). Martinez-Perez contends that the BIA erred by determining that he did not merit the favorable exercise of discretion. We have jurisdiction under 8 U.S.C. § 1105a(a), and we deny the petition for review.

We review the BIA's refusal to grant voluntary departure for abuse of discretion. Cunanan v. INS, 856 F.2d 1373, 1374 (9th Cir. 1988). We examine only whether the BIA exercised discretion and whether the manner in which it was exercised was arbitrary or capricious. Estrada-Posadas v. INS, No. 89-70307, slip op. at 1113 (9th Cir. Jan. 30, 1991) (quoting Cuevas-Ortega v. INS, 588 F.2d 1274, 1278 (9th Cir. 1979)). To receive voluntary departure, an alien must demonstrate that he or she is statutorily eligible and warrants the granting of relief in the exercise of discretion. 8 U.S.C. § 1254(e); Villaneuva-Franco v. INS, 802 F.2d 327, 329 (9th Cir. 1986). The BIA properly exercises its discretion if it supports its conclusion with a reasoned explanation based on legitimate concerns. Estrada-Posadas, slip op. at 1114; Hernandez-Luis v. INS, 869 F.2d 496, 499 (9th Cir. 1989). The BIA may consider a prior conviction even if the sentencing court has made a judicial recommendation against deportation. Delgado-Chavez v. INS, 765 F.2d 868, 869-70 (9th Cir. 1985).

Here, the BIA determined that the unfavorable equities of Martinez-Perez's illegal reentries into the United States, false claim to United States citizenship, misrepresentation of his legal status to his employer, and conviction for importing merchandise in violation of 18 U.S.C. § 545 outweighed the favorable equities of his American wife and children, 12-year residence in the United States, and receipt of an approved visa petition. Martinez-Perez contends that the BIA gave insufficient weight to the following considerations: (1) the fact that he came back to the United States after being returned to Mexico and misrepresented his legal status to his employer so that he could support his family, (2) the district court's judicial recommendation against deportation when it convicted him for importing merchandise, (3) the fact that he will not be able to support his family if he is deported to Mexico, and (4) the effect of separation on his children.

The BIA's statement of the various favorable and unfavorable equities that it considered demonstrates that it exercised its discretion in ruling on Martinez-Perez's application for voluntary departure. See Estrada-Posadas, slip op. at 1113. The BIA's decision also demonstrates that it considered the effects on Martinez-Perez's family and gave some consideration to the judicial recommendation against deportation following the conviction for importing merchandise. Thus, the BIA's exercise of discretion was not arbitrary or capricious. See id.; Hernandez-Luis, 869 F.2d at 499; Delgado-Chavez, 765 F.2d at 869-70. Accordingly, we deny Martinez-Perez's petition for review.

PETITION DENIED.