Unpublished Disposition, 935 F.2d 274 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 274 (9th Cir. 1991)


No. 90-70236.

United States Court of Appeals, Ninth Circuit.

Submitted June 4, 1991.* Decided June 10, 1991.

Before D.W. NELSON, O'SCANNLAIN and TROTT, Circuit Judges.


Petitioner Roberto Lopez-Lopez seeks review of the decision by the Board of Immigration Appeals ("Board") that affirmed an immigration judge's finding of deportability based on petitioner's criminal conviction of possession of marijuana. Petitioner claims that the Board erred in imposing upon him the burden of demonstrating "unusual and outstanding" equities to merit relief under Sec. 212(c) of the Immigration and Nationality Act of 1952, codified at 8 U.S.C. § 1182(c). He also claims that the Board abused its discretion in denying his application for relief. We affirm.

The Immigration and Naturalization Service ("INS") charged petitioner with deportability in September of 1988 under 8 U.S.C. § 1251(a) (1), based on his criminal conviction. Petitioner conceded deportability, but sought a waiver under Sec. 1182(c), which states, in pertinent part:

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 ...

Id. (emphasis added). This section is applicable to deportation, as well as exclusion, proceedings. Tapia-Acuna v. Immigration and Naturalization Service, 640 F.2d 223, 224 (9th Cir. 1981). The immigration judge declined to use his discretion to issue a waiver and thus prevent deportation, and the Board affirmed. We review Board decisions under the abuse of discretion standard. Vargas v. U.S. Dept. of Immigration, 831 F.2d 906, 908 (9th Cir. 1987). We set aside a Board decision denying a waiver "only if the board fails to support its conclusions with a reasoned explanation based upon legitimate concerns." Id.

Petitioner's first claim is that the Board should not have required him to demonstrate "unusual and outstanding" countervailing equities. This, however, is the correct standard in cases where the petitioner has been convicted of a serious crime, such as a "serious drug offense, particularly one related to the trafficking or sale of drugs." Matter of Buscemi, Int.Dec. 3058 at 8 (BIA 1988); see also Matter of Marin, 16 I & N Dec. 581 (BIA 1978) (requirement of unusual or outstanding equities). Petitioner here pled guilty to the offense of knowingly and intentionally possessing with intent to distribute approximately 100 pounds of marijuana, a crime he never denies having committed. We cannot say that the Board abused its discretion in finding petitioner's crime serious and requiring a demonstration of outstanding or unusual equities.

Petitioner also claims that the Board abused its discretion in denying him relief. The Board correctly observed that it should perform a balancing test and concluded that "the equities presented by [Lopez-Lopez] ... do not outweigh his serious criminal misconduct so as to warrant a grant of section 212(c) relief." BIA Order at 6. Though there are indeed equities that stack up in Lopez-Lopez' favor, the Board found quite a few demonstrating that deportation would not be out of keeping with "social and humane considerations." Matter of Marin, 16 I & N Dec. at 584. For instance, petitioner's wife and child live in Mexico, he did not leave Mexico until he was 24, he has maintained close ties to Mexico, he is comfortable with the language and culture of Mexico, no one in the United States is financially dependent on him, he would be considered a professional in Mexico, and he has some money coming to him with which to make a new start. We find that the Board did not abuse its discretion.



The panel unanimously finds this case suitable for decision 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 9th Cir.R. 36-3