Unpublished Disposition, 937 F.2d 612 (9th Cir. 1991)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 612 (9th Cir. 1991)

Elias Diaz dE LEON-GOMEZ, Petitioner,v.IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 90-70174.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 16, 1991.Decided June 28, 1991.

Before GOODWIN, SKOPIL and CANBY, Circuit Judges.


MEMORANDUM* 

Elias Diaz de Leon-Gomez (Gomez) petitions for review of a Board of Immigration Appeals (BIA) order denying his application for adjustment of status to permanent resident. We conclude that the BIA failed to articulate adequately a basis for rejecting Gomez's application. Accordingly, we grant the petition for review, reverse the BIA's decision, and remand for further proceedings.

DISCUSSION

An alien residing in the United States may seek an adjustment of status to become an alien lawfully admitted for permanent residence. See 8 U.S.C. § 1255(a) (1988). The alien must meet statutory requirements and also establish eligibility for a favorable exercise of the agency's discretion. See Patel v. Landon, 739 F.2d 1455, 1457 (9th Cir. 1984). Here, the BIA concluded as a matter of discretion that Gomez was not entitled to an adjustment of status.

We have held that when exercising discretion, the BIA must consider all relevant factors in the record and must discuss each factor in its decision. Jen Hung Ng v. INS, 804 F.2d 534, 538 (9th Cir. 1986). The BIA must " 'state its reasons and show proper consideration of all factors when weighing equities and denying relief.' " Hassan v. INS, 927 F.2d 465, 467 (9th Cir. 1991) (quoting Mattis v. INS, 774 F.2d 965, 968 (9th Cir. 1985)). This obligation is not discharged by cursory reference to evidence favorable to the alien. See Jara-Navarrete v. INS, 813 F.2d 1340, 1343-44 (9th Cir. 1987).

Here, the BIA considered that Gomez was once deported for overstaying a visitor's visa, that he later fraudulently re-entered the United States, and that he invoked his fifth amendment right against self-incrimination at an immigration hearing when asked about a drug arrest. The BIA's only mention of equities favorable to Gomez, however, is its reference to his immediate relative status. There is no indication that the BIA reviewed the affidavits in support of Gomez's adjustment that were submitted by his family, neighbors, in-laws, and employer. The BIA gave no express consideration to the trauma Gomez's wife and children would experience if he were deported or to other positive factors such as Gomez's lengthy residence in this country, his immediate family's residence here, his close ties with his family, and that he is their sole source of support. See Saldana v. INS, 762 F.2d 824, 828 (9th Cir. 1985) (BIA must consider such factors), as amended, 785 F.2d 650 (9th Cir. 1986).

Although the BIA may have implicitly considered the factors favoring Gomez when it concluded that " [t]he adverse factors in this case outweigh the respondent's equities," such boilerplate language does not indicate that the BIA in fact balanced all the equities. See Santana-Figueroa v. INS, 644 F.2d 1354, 1357 (9th Cir. 1981) (court cannot conclude that the BIA necessarily considered everything in the record when the BIA's decision does not show that it expressly considered all factors). Here, the BIA did not satisfy its duty to "give reasons which show that it has properly considered the facts which bear on its decision." Saldana, 762 F.2d at 828 (internal quotations omitted); see also Mattis, 774 F.2d at 968 (BIA's failure to address the evidence presented or to articulate reasons for its negative conclusion was an abuse of discretion requiring reversal and remand).

We conclude that the BIA abused its discretion by failing to consider expressly all relevant factors in the record and to discuss each factor in its decision. Accordingly, we grant the petition for review, reverse the BIA's decision, and remand for further proceedings.

PETITION FOR REVIEW GRANTED; REVERSED AND REMANDED FOR FURTHER PROCEEDINGS

 *

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