Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1015 (9th Cir. 1991)


No. 90-70557.

United States Court of Appeals, Ninth Circuit.

Submitted May 9, 1991.* Decided May 13, 1991.

Before JAMES R. BROWNING, GOODWIN and POOLE, Circuit Judges.


Refugio Paniagua-Estrada, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") decision finding him deportable and denying him a discretionary waiver of deportation under section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c).1  We have jurisdiction pursuant to 8 U.S.C. § 1105(a) and deny the petition for review.2 

Paniagua-Estrada contends that the BIA failed to properly weigh the positive and negative factors and incorrectly determined that he had not shown sufficient rehabilitation.

We review the BIA's denial of section 212(c) relief from deportation for an abuse of discretion. See Vargas v. INS, 831 F.2d 906, 908 (9th Cir. 1987). We will reverse the BIA's decision only if the Board fails to support its conclusion with a reasoned explanation based upon legitimate concerns. Id. The BIA's decision must reflect a proper consideration of all favorable and unfavorable factors when weighing the equities and denying relief. See Mattis v. INS, 774 F.2d 965, 968 (9th Cir. 1985).

In certain cases, the favorable factors must amount to "unusual or outstanding" equities before a favorable exercise of discretion will even be considered. See Matter of Buscemi, Int.Dec. No. 3058 at 7-8 (BIA1988) (citing Matter of Marin, 16 I & N Dec. 581, 584-85 (BIA1978)). This heightened showing may be required where the alien has committed a single serious crime, or a succession of criminal acts together establishing a pattern of serious criminal misconduct. Id. The existence of outstanding equities, however, does not compel a favorable exercise of discretion. Id.

Here, the BIA reaffirmed its finding that Paniagua-Estrada's conviction for possession of cocaine was a serious offense requiring a demonstration of outstanding equities before a favorable exercise of discretion would be considered. The BIA found that Paniagua-Estrada had demonstrated outstanding equities, but nevertheless determined that these favorable factors3  were insufficient to overcome Paniagua-Estrada's "criminal record, ... his failure to demonstrate rehabilitation,4  and his incredible and dishonest testimony."

Given the circumstances, we find that the BIA's decision is supported by a reasoned explanation of legitimate concerns and that the BIA did not abuse its discretion in denying Paniagua-Estrada section 212(c) relief from deportation. See Vargas, 831 F.2d at 908. Accordingly, we deny the petition for review.



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


Section 212(c) provides the Attorney General with discretion to waive deportation to lawful permanent resident aliens who have accrued seven consecutive years of lawful domicile in the United States. See 8 U.S.C. § 1182(c); Tapia-Acuna v. INS, 640 F.2d 223, 224 (9th Cir. 1981)


The BIA originally affirmed the immigration judge's ("IJ") order of deportation and denial of section 212(c) relief on August 15, 1988. Paniagua-Estrada appealed to this court. On May 24, 1990, we affirmed the BIA's decision but granted Paniagua-Estrada sixty days in which to file a motion to reopen with the BIA. See Paniagua-Estrada v. INS, No. 88-7329, unpublished memorandum disposition at 5-6 (9th Cir. May 24, 1990). Paniagua-Estrada filed a motion to reopen. The BIA granted his motion to reopen and affirmed its prior decision


Favorable factors cited by the BIA included Paniagua-Estrada's 25 years of permanent resident status and his extensive family in the United States, some of whom are United States citizens


In determining whether Paniagua-Estrada had demonstrated rehabilitation, the BIA first observed that under Matter of Edwards, Int.Dec. No. 3134 (BIA1990), a clear showing of rehabilitation was not an absolute prerequisite to granting section 212(c) relief. The BIA concluded, however, that Paniagua-Estrada's "failure to accept responsibility for his actions, his lack of remorse, and his insistence that he could not disclose the names of friends involved in his drug offense demonstrated a complete lack of rehabilitation" and that this lack of rehabilitation was a "significant factor" in considering whether Paniagua-Estrada merited section 212(c) relief