Unpublished Disposition, 937 F.2d 612 (9th Cir. 1990)

MEMORANDUM^* 

Petitioner Hing-Tin Ngai seeks review of an order by the Board of Immigrations Appeals ("BIA") denying his motion to reopen deportation proceedings. Ngai's ultimate claim is that his eight-year marriage to an American citizen, the INS-approved immediate relative petition filed on his behalf by his wife, his stable and successful career as an auditor and financial officer, and his otherwise lawful and upstanding conduct entitle him to remain in the United States despite his disobedience of a 1982 deportation order. This appeal, however, concerns only whether the BIA abused its discretion in denying Ngai the opportunity even to present that claim by virtue of its denial of his motion to reopen his deportation proceeding.

Petitioner asserts that the BIA erred in denying his motion to reopen and, specifically, that it erred by:

1. extending the rationale of INS v. Rios-Pineda to his case because his conduct did not amount to "deliberate flouting" of the immigration laws;

2. relying on unreliable double-hearsay evidence;

3. departing from its own precedent;

4. violating Congressional intent regarding family unification;

5. denying him procedural due process by summarily denying his motion to reopen;

6. affording him less relief than he could have obtained pursuant to IRCA; and

7. failing to state its reasons for denial with sufficient particularity and, specifically, failing to indicate that it considered the duration of his marriage or his employment.

Because the BIA, in exercising its discretion, failed to consider all of the equities in Ngai's favor that should have been weighed in the decision to deny reopening, we reverse and remand.

FACTS

Petitioner is a 35-year old native of Hong Kong who entered the United States in September, 1977, on a nonimmigrant student visa which authorized him to remain until March, 1981, as long as he maintained full-time student status. During this period petitioner received a degree in accounting from the University of Washington and took and passed the Washington State Certified Public Accountant Examination. Ngai requested an extension of his student visa and permission to transfer to the University of Puget Sound, at which he had enrolled in January, 1981, in order study for a masters degree in business administration. The INS denied that request on February 7, 1981, because Ngai had failed to maintain his full-time student status during the spring and fall quarters in 1980. The INS District Director denied petitioner's motion to reopen and reconsider that decision on March 24, 1981.

On June 16, 1981 the INS sent Ngai a notice that he was subject to deportation and ordered him to appear at a hearing on July 1, 1981. Mr. Ngai appeared at that hearing represented by counsel. The immigration judge found petitioner to be deportable and granted him voluntary departure by August 1, 1981. The petitioner appealed and the BIA dismissed the appeal on June 18, 1982. The petitioner was again granted voluntary departure and was given 30 days to do so. Subsequently he was granted an extension of voluntary departure to August 5, 1982.

When there was no record of Ngai's departure from the United States, the INS sent him a notice that he had been ordered deported and should appear on January 25, 1983, at the INS office for deportation.¹  Ngai did not report for deportation on that date. Mr. Robert O. Wells, the attorney representing the petitioner at every stage of the proceedings through the 1982 BIA appeal sent the INS a letter dated March 25, 1983 stating that a friend of Mr. Ngai's had told him that Mr. Ngai was out of the United States. Mr. Wells sent a second letter to the INS on April 4, 1983 indicating that he had received an envelope postmarked in Hong Kong containing a letter from Mr. Ngai stating that Mr. Ngai had departed from the United States to Canada in September, 1982.²  Mr. Ngai now states that he never actually left the United States.

Mr. Ngai did leave the Seattle area in September, 1982, and relocated to Los Angeles, California. He has lived and worked there openly since that time, first as an auditor for Peat, Marwick and then as a controller for Delmar Enterprises. He has regularly reported his income and paid taxes. In December, 1983, he married his wife, then a lawful permanent resident, who was subsequently naturalized as a United States citizen on June 10, 1988. In December, 1988, Mrs. Ngai filed an immediate relative petition under Immigration and Nationality Act Sec. 201(b), 8 U.S.C. § 1151(b) on Mr. Ngai's behalf. That petition was approved by the INS in February, 1989. In April, 1989, Mr. Ngai filed the motion to reopen deportation proceedings. That motion was denied by the BIA on February 7, 1990. Mr. Ngai filed a timely petition for review of the BIA's decision on March 13, 1990.

DISCUSSION

Ngai seeks to reopen his deportation proceedings so that he may apply for adjustment of status pursuant to section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255, based on his marriage to a United States citizen, and also for suspension of deportation based on extreme hardship pursuant to section 244(a) of the Act, 8 U.S.C. § 1254(a). Both of those forms of relief lie within the discretion of the Attorney General even where the alien demonstrates eligibility. The Supreme Court has held that where the underlying relief sought is discretionary, the BIA is not required to consider whether the threshold statutory eligibility requirements are met if it decides that relief should be denied as a matter of discretion. INS v. Bagamasbad, 429 U.S. 24 (1976) (per curiam) (adjustment of status); INS v. Rios-Pineda, 471 U.S. 444 (1985) (suspension of deportation); Vasquez v. INS, 767 F.2d 598 (9th Cir. 1985). In this case, the BIA did not consider the petitioner's eligibility for either suspension of deportation or adjustment of status,³  but "leaped ahead," as permitted by Rios-Pineda and Bagamasbad, and found that the petitioner would not merit the favorable exercise of discretion. On that basis, it denied the motion to reopen.

We review the BIA's decision to deny the motion to reopen for abuse of discretion. INS v. Rios-Pineda, 471 U.S. at 451; Vasquez v. INS, 767 F.2d at 600. The denial of a motion to reopen must be upheld unless it is arbitrary, irrational, or contrary to law. Awhazi v. INS, 751 F.2d 1120, 1122 (9th Cir. 1985). However, in denying a motion to reopen, the Ninth Circuit has held, subsequent to Rios-Pineda, that the BIA must weigh both favorable and unfavorable factors, and it must state its reasons when weighing equities and denying relief, even where it denies relief as a matter of discretion. Ng v. INS, 804 F.2d 534 (9th Cir. 1986), citing Mattis v. INS, 774 F.2d 965, 968 (9th Cir. 1985). Where factual assertions in affidavits supporting a motion to reopen are specific and not conclusory, for the purposes of determining whether to reopen the BIA must accept their truth unless they are inherently incredible. Mattis v. INS, 774 F.2d at 968; Aviles-Torres, 790 F.2d 1433, 1436 (9th Cir. 1986). In addition, the BIA cannot disregard its own precedents and policies without giving a reasonable explanation for doing so. Israel v. INS, 785 F.2d 738, 740 (9th Cir. 1986). Nor can it consider an improper factor in reaching a discretionary decision. Ng, 804 F.2d at 539 (holding that consideration of petitioner's father's fraudulent conduct was improper and remanding to BIA).

The reviewing court must look to whether the BIA's explanation of its decision was grounded in "legitimate concerns about the administration of the immigration laws...." Gonzalez-Batoon, 791 F.2d 681, 686 (9th Cir. 1986) (en banc) (quoting Rios-Pineda and holding that the BIA acted irrationally when it misstated the record and accused the petitioner of overstaying a grant of voluntary departure when in fact she had not done so). There is an abuse of discretion where the Board "misapplie [s] the principles upon which it purport [s] to act and fail [s] to state valid reasons for its action...." Id. at 686.

Below, we carefully consider and reject most of Ngai's numerous arguments. Nevertheless, we ultimately conclude that the BIA failed to consider all of the equities in his favor.

A. Applicability of Rios-Pineda/Impermissible Factor

Ngai asserts that the BIA erred by applying Rios-Pineda and denying his motion to reopen as a discretionary matter based on his alleged misconduct. The Supreme Court held in Rios-Pineda that "the Attorney General [has] discretion to consider [petitioners'] individual conduct and distinguish among them on the basis of the flagrancy and nature of their violations" of federal immigration law. Rios-Pineda, 471 U.S. at 451 (holding that "the Attorney General did not abuse his discretion in denying reopening based on respondents' flagrant violation of the federal law in entering the United States, as well as respondent husband's willful failure to depart voluntarily after his request to do so was honored by the INS"). However, Ngai contends that his conduct is so clearly distinguishable from that in Rios-Pineda that it was erroneous for the BIA to cite Matter of Barocio, Interim Decision No. 2992 (BIA 1985), which is grounded on Rios-Pineda.

Ngai's argument is factually and legally unpersuasive; taking the facts as the BIA found them (most of which were admitted or clearly established in the record), petitioner overstayed his student visa, willfully failed to depart voluntarily after his request to do so was honored and then extended by the INS, deliberately took steps designed to mislead the INS as to his departure, and only resurfaced to the INS after his wife became a citizen. The petitioners in Rios-Pineda had entered without inspection by paying a professional smuggler to transport them into the United States, and the husband had, like Mr. Ngai, failed to depart voluntarily despite receiving extensions. However, there was no indication that the petitioners in Rios-Pineda took steps to mislead or evade the INS after the deportation proceedings began; on the contrary, they continued to pursue their appeals through the administrative and court systems. That the Rios-Pineda petitioners' violations of immigration law took a different form than Mr. Ngai's do not make them any more culpable or "flagrant."

Secondly, given the broad discretion accorded the BIA to deny motions to reopen, even if Mr. Ngai's violations of the law were somewhat less flagrant than those of the petitioners in Rios-Pineda, we would not be justified in grading so finely the BIA's discretion. Since there was a sufficient record for the BIA to infer that Mr. Ngai purposely misled the INS, we conclude that "the BIA's explanation of its decision was grounded in legitimate concerns about the administration of the immigration laws and was determined on the basis of the particular conduct of respondents," as required by Rios-Pineda, 471 U.S. at 452. Even the few Ninth Circuit cases which have reversed discretionary denials of motions to reopen subsequent to Rios-Pineda suggest that there would be no abuse of discretion where the BIA could legitimately find that the petitioner's violation of immigration law was beyond the usual violation of overstaying a visa. See Gonzalez Batoon v. INS, 791 F.2d at 684-85 (stating that "the Board in its discretion may deny relief when eligibility has been acquired by illegally entering the country or failing to depart as promised" but reversing because the BIA's finding that petitioner had overstayed a grant of voluntary departure was erroneous); Israel v. INS, 785 F.2d at 742 (finding no evidence that petitioner had entered with a preconceived intent to remain or was attempting to hide from INS, and rejecting BIA's reliance on the fact that she had been found to be deportable prior to her marriage because "the fact that she had previously been found deportable ... would be true of any alien filing a motion to reopen"). In this instance, because Mr. Ngai's alleged conduct goes beyond the mere overstaying of his visa, his violation of the immigration laws was a permissible factor for the BIA to consider in exercising its discretion.

Petitioner also objects to the Board's citation to Matter of Barocio because it concerned only suspension of deportation and not adjustment of status for an immediate family member. The Board itself noted that Barocio was not on all fours with petitioner's case but relied on its holding that "deliberate flouting of the immigration laws has been considered a very serious adverse factor which warrants the denial of a motion to reopen deportation proceedings as a matter of discretion." Order Denying Motion to Reopen at 3; Barocio, Interim Decision No. 2992 (BIA 1985) at 3. The Supreme Court made clear in Bagamasbad that discretionary denial based on misconduct is also permissible in the adjustment of status context. 429 U.S. 24.

Ngai vigorously contests the nature and adequacy of the evidence that he attempted to mislead the INS. He characterizes the evidence as hearsay and innuendo and asserts that the BIA's reliance on Mr. Wells' letters and the purported communications to Mr. Wells was erroneous.⁴  Administrative proceedings are not controlled by strict rules of evidence; the law requires only that an alien be afforded due process. Cunanan v. INS, 856 F.2d 1373 (9th Cir. 1988), citing Hernandez v. INS, 498 F.2d 919, 921 (9th Cir. 1988). In deportation proceedings, the test for admissibility is whether the hearsay statement is "probative" and whether its admission is "fundamentally fair." Id., citing Baliza v. INS, 709 F.2d 1231, 1233 (9th Cir. 1983). See also, De La Luz v. INS, 713 F.2d 545, 546 (9th Cir. 1983) (per curiam) (finding an abuse of discretion where immigration judge considered "bare speculation" that petitioner had engaged in welfare fraud). When important aspects of the individual claim are distorted or disregarded, denial of relief is arbitrary. Santana-Figueroa v. INS, 644 F.2d 1354, 1356 (9th Cir. 1981) (immigration judge erroneously distorted petitioner's representation that he could not get work at all in Mexico into a statement that it would be "very difficult to get work").

There are several flaws in Ngai's evidentiary claims. First, the basic facts that the previous attorney wrote letters to the INS indicating that he had received communications from a friend of petitioner and from petitioner himself stating that Mr. Ngai had left the country were asserted by the petitioner in his own motion. Even if the rules of evidence applied, this would amount to nonhearsay as an admission against interest. Fed.R.Evid. 801. Likewise, petitioner has admitted that the communications to the lawyer were "incorrect" and "misleading."

While it is true that petitioner has not admitted that he wrote the letter to Mr. Wells, or was involved in arranging for it to be sent to Mr. Wells from Hong Kong, or that he intended for Mr. Wells to then mislead the INS based on that information, those are all reasonable inferences to be drawn from the admitted facts. The petitioner did not offer any affidavits or statements in his motion to reopen to counter those inferences or to explain his actions; he merely asserted before the BIA, as he does on appeal, that he deserves a hearing so that he can "show in more detail ... that he merits the relief requested." Motion to Reopen at 2. Petitioner asserts that he "has been denied the opportunity to respond to [the] innuendo in reopened proceedings," and that therefore the heavy weight given to the "hearsay" statements is fundamentally unfair. However, there was nothing to prevent Mr. Ngai, if he were truthfully able to contradict the logical inference from the admitted facts, from providing that information to the BIA in the form of affidavits.⁵ 

Although the INS in its brief on appeal exaggerates the petitioner's conduct to the point that it might be viewed as "distortion" within the meaning of Santana-Figueroa, supra, the BIA did not do so in its decision below, which is the locus of this court's inquiry. This is likewise not a case where the BIA has erroneously failed to accept the truth of an affidavit submitted by petitioner. See Hamid v. INS, 648 F.2d 635, 637 (9th Cir. 1981). Indeed, there does not appear to be any conflict as to the facts, just disagreement as to the permissible inferences from them. Where the admitted facts are reasonably susceptible of an inference that Mr. Ngai undertook to mislead the INS as to his departure from the United States, it was not an abuse of discretion for the BIA to rely on that inference. Here, the admitted facts are probative of the petitioner's likely evasive conduct and it was not "fundamentally unfair" for the BIA to consider them.

Petitioner also contends that the Board erred by departing from its own precedent without reasonable explanation. The Ninth Circuit has recognized that such unexplained departures constitute an abuse of discretion. Israel v. INS, 785 F.2d 738 (9th Cir. 1986) (holding that the BIA's unexplained departure from the policy established in Matter of Garcia, 16 I. & N. Dec. 653 (BIA 1978) constituted an abuse of discretion). However, the cases cited by petitioner are all distinguishable. In a number of the cited cases, petitioner disregards the fact that the decisions were related to different immigration provisions or were in an entirely different posture, and instead focuses on the fact that the BIA granted a motion to reopen despite the fact that the petitioner was somehow "bad" or had engaged in conduct somewhat similar to petitioner's. See Matter of Hom, 16 I. & N. 112 (BIA 1977) (granting reopening to alien found deportable for a narcotics conviction because he made a showing of eligibility for a Sec. 1182(c) waiver of inadmissibility). Such comparisons are of apples and oranges and do not provide support for an argument that the BIA abused its discretion in this instance.

Petitioner, as in Israel, contends that the BIA has departed without explanation from Garcia, and asserts that it has also departed from a number of its other precedents. Garcia and Israel are readily distinguishable from the facts in this case. Like Mr. Ngai, the petitioners in those cases married United States citizens after they were found to be deportable, and subsequently filed motions to reopen in order to pursue adjustment of status. In Garcia, the Board announced a new policy of reopening such cases "unless clear ineligibility is apparent in the record." 16 I. & N. Dec. at 654. The Board went on to state its belief "that discretion should, as a general rule, be favorably exercised where a prima facie approvable visa petition and adjustment application have been submitted in the course of a deportation hearing or upon a motion to reopen." Id. at 657. In Israel, the BIA dismissed the petitioner's appeal of the denial of her motion to reopen on grounds that "neither the equity inherent in her marriage nor the hardship to her citizen spouse was entitled to much weight, because the marriage took place after Israel had been found deportable." 785 F.2d at 740. The Ninth Circuit held that because the facts in Israel were indistinguishable from those in Garcia, and the BIA had not explained its departure, its decision was arbitrary. The present case, however, is different, and the BIA explained the resulting departure from precedent: Mr. Ngai not only overstayed his visa and was found to be deportable, but he apparently undertook to mislead the INS as to his departure. Thus, the BIA's divergence from Garcia was warranted and was adequately explained.

Petitioner also cites a number of other precedents from which he alleges that the BIA inexplicably departed. Only three of these merit discussion. Ngai asserts that the BIA abused its discretion because it "departed" from its precedents in Matter of Battista, Interim Decision No. 3036 (BIA 1987) and Matter of Cavazos, 17 I. & N. 215 (BIA 1980). Both Battista and Cavazos involved the adverse factor of "preconceived intent to remain." In Cavazos, the Board altered its prior position that preconceived intent to remain should be considered a "serious adverse" factor warranting denial of reopening and held that in the absence of other adverse factors, an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding a preconceived intention to remain. In Battista the Board rejected the IJ's finding that petitioner had preconceived intent to remain and also held that in light of Cavazos the IJ had erred by not weighing the respondent's significant family ties since preconceived intent is only one factor to be considered in the exercise of discretion.⁶  Again, these cases are distinguishable from Mr. Ngai's. Preconceived intent to remain is simply different from affirmatively taking steps to mislead the INS, and we do not find it an abuse of discretion for the Board to treat the two issues differently.

Matter of Fu, 11 I. & N. 919 (BIA 1966) is likewise distinguishable. There, the petitioner had been served with a warrant for her deportation but had failed to depart, and--like Mr. Ngai--had remained undetected for seven years. There were, however, no allegations that the petitioner had attempted to mislead the authorities into believing that she had, in fact, departed.

The panel in Israel held that the BIA had abused its discretion because it failed to explain its departure from an indistinguishable precedent. Were "indistinguishable precedent" to be viewed more broadly, as the petitioner here suggests, the Board would be put in the impossible position of having to make sure that it distinguished any related or similar precedents. A failure to do so does not amount to arbitrary or irrational decisionmaking.

Petitioner argues that the BIA's failure to grant his motion to reopen despite his approved petition and his longstanding marriage violates "Congressional intent" regarding family reunification. This contention is obviously without merit. It is clear from the case law that the Board has discretion to deny motions to reopen even where family reunification concerns are implicated.

Petitioner makes vague allegations that the summary denial of his motion to reopen violates his right to due process. There is no constitutional or even statutory right to reopening. Motions to reopen were created by regulation. 8 C.F.R. Secs. 3.2, 3.8. As the Supreme Court pointed out in INS v. Wang, 450 U.S. 139, 143-44 n. 5, " [t]he present regulation is framed negatively; it directs the Board not to reopen unless certain showings are made. It does not affirmatively require the Board to reopen the procedings under any particular condition. Thus, the regulations may be construed to provide the Board with discretion in determining under what circumstances proceedings should be reopened." See also, INS v. Phinpathya, 464 U.S. 183, 188 n. 6 (1984) ("granting of the motion [to reopen] is entirely within BIA's discretion"). Absent a showing by petitioner that the BIA has acted arbitrarily in one of the ways described at pages 5-7 supra, petitioner has no claim for violation of due process.

Petitioner also suggests that the BIA's decision is somehow erroneous because he was entitled to amnesty pursuant to the Immigration Reform and Control Act of 1986 (IRCA) and because he would be entitled to relief under IRCA's "Family Fairness" policy had his wife applied for amnesty rather than citizenship. It is well within Congress' purview to offer different forms of relief to different classifications of aliens. Likewise, Congress may grant a lesser form of relief (amnesty) more easily than it grants a greater form of relief. That IRCA operates differently from the provisions under which Ngai applied has no relevance to the question of whether the BIA abused its discretion by denying Ngai's motion to reopen.

G. Adequacy of Findings and Failure to Consider Relevant Equities

Petitioner also asserts that the BIA's findings are inadequate as they are overly summary in nature. Related to this contention is petitioner's argument that the BIA erroneously failed to consider and give any weight to his longstanding marriage, his stable and successful employment, and particularly to the fact that he was the beneficiary of an approved immediate relative visa petition.⁷  "As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach." INS v. Bagamasbad, 429 U.S. at 25 (citing Hirabayashi v. United States, 320 U.S. 81, 85 (1943)). The Supreme Court has held that where the BIA denies an application as a matter of discretion, it need not make any findings as to the alien's eligibility for the requested form of relief. Bagamasbad, 429 U.S. at 25 (where INS denied respondent's application as a matter of discretion because she had made serious misrepresentations to the United States consul who had issued her visa, it need make no findings regarding eligibility). See also, Rios-Pineda, 471 U.S. at 449 (holding that if the Attorney General decides that relief should be denied as a matter of discretion, he need not consider whether the threshold statutory eligibility requirements are met).

We are not concerned here with the BIA's failure to consider Ngai's eligibility for the underlying relief. The question presented is whether, when the BIA leaps ahead and denies relief as a discretionary matter on the basis that petitioner has flouted the immigration laws, it is still required to balance the equities and to make clear findings indicating that, in exercising its discretion, it has considered issues such as the nature of the petitioner's marriage and employment. This circuit has held on several occasions that even where the Board exercises discretion on Rios-Pineda grounds, it must still balance the equities and at least consider evidence regarding other relevant factors. In Mattis v. United States, 774 F.2d at 968 (reversing the BIA's denial of a motion to reopen where the petitioner sought an adjustment of status following his marriage one day prior to his scheduled deportation), the panel reversed on the grounds that the BIA "failed to give a non-arbitrary reasoned explanation for its denial of the motion to reopen." The BIA had denied the motion both on the basis that petitioner had failed to show extreme hardship and as a matter of discretion. The court held that " [r]eliance by the BIA on the fact that Mattis entered into a 'last minute marriage' does not demonstrate a legitimate concern about the administration of immigration laws in light of the BIA's determination that the marriage was not a sham." Id. at 969. The court further held that the "BIA abused its discretion when it failed to consider ... evidence that Mattis was gainfully employed and financially responsible." Id. In Ng v. INS (reversing BIA's discretionary denial of a motion to reopen despite prima facie eligibility for adjustment of status), the court, in addition to reversing the Board for impermissibly considering the petitioner's father's fraudulent conduct, also held that the BIA neglected to consider relevant factors, in particular that "Ng was both gainfully employed and financially responsible." 804 F.2d at 540. See also, Ahwazi v. INS, 751 F.2d 1120 (9th Cir. 1985) (applying a balancing approach and holding that petitioners' recent marriages did not outweigh their immigration law violations).

In this instance, the BIA did not discuss the duration and apparent legitimacy of Ngai's marriage or, more importantly, even mention his gainful employment and financial responsibility. While this omission may be due in part to Ngai's failure to discuss his employment in the body of his motion to reopen, his employment was clearly reflected in his application for suspension of deportation which the Board recognized was "contained" in his motion. The BIA's failure to address these significant factors or to accord them any weight in the balancing of equities was arbitrary and mandates reversal.

CONCLUSION

Although we find most of petitioner's arguments to be without merit, we are persuaded that the BIA acted arbitrarily in failing to consider the Ngais' lengthy marriage or Mr. Ngai's gainful employment and financial responsibility. Accordingly, we REVERSE and REMAND to the BIA so that it properly may weigh all of the equities relevant to the motion to reopen.