Unpublished Disposition, 928 F.2d 408 (9th Cir. 1984)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 408 (9th Cir. 1984)

Jose Dolores QUIRRIN MONCADA, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 89-70420.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 3, 1990.* Decided March 13, 1991.

Petition to Review a Decision of the Immigration and Naturalization Service, No. A30-497-577.

BIA

AFFIRMED.

Before JAMES R. BROWNING, PREGERSON and LEAVY, Circuit Judges.


MEMORANDUM** 

The petitioner, Jose Quirrin-Moncada, appeals from a decision of the Board of Immigration Appeals (the Board) that affirmed the immigration judge's determination that Quirrin-Moncada is deportable under section 241(a) (13) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1251(a) (13) (1988). Quirrin-Moncada also appeals the Board's affirmance of the decision denying his application for a waiver of deportation under section 212(c) of the Act, 8 U.S.C. § 1182(c) (1988).

Before he was ordered to deport, Quirrin-Moncada was convicted in a United States District Court of assisting aliens in eluding inspection by immigration officers, in violation of 8 U.S.C. § 1352 and 18 U.S.C. § 2 (1988).

Whether This Court Has Jurisdiction

The Government argues this court lacks jurisdiction to consider Moncada's claims because he failed to exhaust his administrative remedies. We disagree.

First, Moncada made both his arguments on appeal before the BIA. Simply because his notice of appeal, which was filed pro se, did not provide the precise evidentiary basis for his challenge does not mean he did not effectively raise those issues before the BIA. See Athehortua-Vanegas v. INS, 876 F.2d 238, 240 (1st Cir. 1989) (alien who appealed deportation order to BIA exhausted administrative remedies, even though he never filed a brief and presented an inadequate statement of the basis for his appeal).

Second, the BIA decided the merits of Moncada's claims. Therefore, we have jurisdiction to consider the same issues. Sagermark v. INS, 767 F.2d 645, 648 (9th Cir. 1985) (whether or not immigrations judge's decision was technically before the BIA, the BIA decided it; administrative remedies were therefore exhausted, and the appellate court had jurisdiction), cert. denied, 476 U.S. 1171 (1986).1 

Whether the Board Erred In Finding Moncada Transported Illegal Aliens for Gain

Moncada argues that no evidence supports the Board's finding that he aided and abetted the entry of illegal aliens for gain. Therefore, he concludes the Board erred in finding him deportable under section 241(a) (13).2  However, Moncada pled guilty in 1984 to violating 18 U.S.C. § 2 and 8 U.S.C. § 1325, specifically, to assisting aliens in eluding inspection by immigration officers. Although gain is not an essential element of an offense under either statute, the statement of facts in the complaint stated in part:

the defendant, particularly Jose Dolores QUIRRIN-Moncada, on August 16, 1984 made arrangements with said aliens in Mexicali BC, Mexico to smuggle them into the US, specifically to the Los Angeles, California area, for the sum of $250 US dollars.

CAR at 102. At the time the record of conviction, including the complaint, was introduced at his deportation hearing, Moncada objected only to the characterization of the offense as smuggling rather than aiding and abetting. He did not object to the accuracy of the facts stated in the complaint. This evidence alone is sufficient to support the Board's finding of deportability.3 

Whether The Board Abused Its Discretion In Denying Moncada's Request for Relief under Section 212(c)

Moncada argues that the Board abused its discretion in denying him relief from deportation under section 212(c). First, he contends the Board applied a vague standard in violation of due process in requiring him to show "unusual or outstanding equities" because of the seriousness of his criminal record. Second, he claims the Board failed to consider several favorable factors in rejecting his request for a waiver.

Whether The Standard Is Vague

The Board's power to grant waivers under section 212(c) is discretionary.4  In determining whether an alien is entitled to section 212(c) relief, the Board has required a balancing of "adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf...." Matter of Marin, 16 I & N Dec. 581, 584 (1978). The Board has further noted

as the negative factors grow more serious, it becomes incumbent upon the alien to introduce additional offsetting favorable evidence, which in some cases may have to involve unusual or outstanding equities.... Such a heightened showing is required when an alien has been convicted of a serious drug offense.... The necessity of demonstrating unusual or outstanding equities is not exclusively triggered by serious crimes involving controlled substances however. Rather, as we indicated in Marin, one must examine the gravity of the offense, per se.

Matter of Buscemi, 1988 BIA LEXIS 18, 13-14 (1988).

In this case, the Board found Moncada had failed to demonstrate "unusual or outstanding equities" sufficient to outweigh his criminal record. Moncada argues that this standard is vague in that "equities" is not defined. However, in Buscemi, the Board listed specific factors which it considered to be "outstanding equities" in the case before it: Buscemi's lengthy residence in this country, his immediate family's residence here, and his close ties to his family. Id. at 15-16. As interpreted by the administrative case law, the standard is not vague.

Whether the Board Failed To Consider Relevant Factors In

Moncada's Favor

Moncada argues the Board abused its discretion in failing to consider relevant factors in his favor. We will set aside a Board decision denying relief under section 212(c) "only if the board fails to support its conclusions with a reasoned explanation based upon legitimate concerns." Vargas v. INS, 831 F.2d 906, 908 (9th Cir. 1987). Here, the Board concluded that Moncada's criminal history of transporting illegal aliens and his continued practice of driving while intoxicated, outweighed the equities in his favor. While we may have struck the balance differently were we deciding the merits of this case, we cannot say that the Board failed to adequately support its conclusion under the circumstances.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit 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 Ninth Circuit Rule 36-3

 1

The cases the government offers to support its position that this court lacks jurisdiction are inapposite. In Vargas v. INS, 831 F.2d 906 (9th Cir. 1987), the petitioner's notice of appeal to the BIA challenged the immigration judge's denial of a waiver of deportation, and did not mention the due process claim the petitioner later tried to raise before the court of appeals. See id. at 908. In Florez-de Solis v. INS, 796 F.2d 330 (9th Cir. 1986), the notice of appeal to the BIA stated only that the immigration judge had abused his discretion in denying her asylum. The notice did not allude to the argument later raised in the appeals court, that the transcript of the original hearing was inadequate. See id. at 333, 355

In contrast, Moncada raised before the BIA both issues he appeals here.

 2

Section 241(a) (13) provides:

Any alien in the United States ... shall, upon order of the Attorney General, be deported who--

(13) prior to, or at the time of any entry, or at any time within five years after any entry, shall have, knowingly and for gain, encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law....

 3

Moncada also objects to the Board's reliance on the I-213 Form, Record of Deportable Alien, arguing that the document should not have been admitted into evidence because it contained incorrect information about his transportation of aliens for gain. However, a Form I-213 is admissible so long as it is probative and fundamentally fair. Tejada-Mata v. INS, 626 F.2d 721, 724 (9th Cir. 1980), cert. denied, 456 U.S. 994 (1982). As the form does little more than summarize the facts of Moncada's conviction in 1984, it is not fundamentally unfair to admit the form into evidence given that his conviction record was already admitted into evidence

 4

Section 212(c) provides:

Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of paragraphs (1)-(25), (30), and (31) of subsection (a) of this section. Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 1181(b) of this title.

8 U.S.C. § 1182(c). Although section 212(c) on its face does not apply in deportation proceedings, this court has expanded the provision to include deportation proceedings. See Tapia-Acuna v. INS, 640 F.2d 223, 225 (9th Cir. 1981).