Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.francisco Maria De Freitas Noia, Petitioner, v. Immigration and Naturalization Service, Respondent, 974 F.2d 1329 (1st Cir. 1992)

Petitioner, Francisco Maria De Freitas Noia, seeks review of a final order of the Board of Immigration Appeals ("BIA") reversing an immigration judge's grant of petitioner's application for discretionary relief from deportation under § 212(c) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1182(c). We deny the petition.

Petitioner lawfully entered the United States from Portugal on July 17, 1976 at the age of 17. Twenty-nine months later he was arrested and indicted in Rhode Island for assaulting a woman with a hatchet with intent to murder her, robbing her, and stealing her car. He was convicted of all three charges on a plea of nolo contendere and sentenced to twenty-one years incarceration followed by another twenty years of probation. He served approximately nine years in the Adult Correctional Institute at Cranston. In July, 1987, he was released on parole and into the custody of the Immigration and Naturalization Service ("INS"), which had previously served him with an Order to Show Cause why he should not be deported.

At his deportation hearing, petitioner conceded the facts establishing that he was deportable under § 241(a) (4) of the Act, 8 U.S.C. § 1251(a) (4), as an alien convicted of a crime involving moral turpitude. However, he requested a waiver of his deportation under § 212(c), 8 U.S.C. § 1182(c).¹  The immigration judge ("IJ") granted his application. On appeal the BIA reversed, finding no demonstration of the "unusual or outstanding equities" needed to establish eligibility for a discretionary waiver under § 212(c).

Petitioner asks this court to conduct a de novo review of the evidence, replacing our view of the facts (which he argues should be the same as the IJ's view) for that of the BIA. Even if we were persuaded by petitioner's view of the facts however, the discretion to waive exclusion of an otherwise deportable alien under the Act has been delegated to the BIA, not to this court. Hazzard v. INS, 951 F.2d 435, 438 (1st Cir. 1991). We review the BIA's action only to determine if it was "arbitrary, capricious or an abuse of discretion." McLean v. INS, 901 F.2d 204, 205 (1st Cir. 1990).

The BIA exercises its discretion by "balanc[ing] the 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 (B.I.A. 1978); Joseph v. INS, 909 F.2d 605 (1st Cir. 1990) (BIA's interpretation of its statutory authority is entitled to court's respect). Its factual findings are conclusive if supported by "reasonable, substantial and probative evidence on the record considered as a whole." 8 U.S.C. § 1105a(4).²  On review, we will uphold the BIA's action "unless it was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." McLean, 901 F.2d at 205 (quoting William § v. INS, 773 F.2d 8, 9 (1st Cir. 1985)).

We read petitioner's arguments as challenging the BIA's exercise of discretion on three grounds. Petitioner claims that the BIA improperly (1) departed from established policies when it weighed the factors involved, (2) exceeded its authority by conducting a de novo review and substituting its own view of the facts for that of the IJ, and (3) based its factual conclusions on less than "substantial" evidence.

(1) Departure from established policies

Petitioner argues that the BIA abused its discretion by applying to his case a standard of eligibility never before imposed. The requirement of "unusual and outstanding equities" to offset serious negative factors, first articulated in Matter of Marin, 16 I. & N. Dec. 581 (B.I.A. 1978), petitioner argues, was applicable only in cases involving drug-related crimes when his hearing was held in July, 1987. We disagree.

Although Marin involved an alien who had been convicted of drug-related crimes, the BIA's opinion applied to all § 212(c) waiver cases. The opinion clearly warned that a proportionately greater showing of equities was required to balance out more egregious crimes. Marin, 16 I. & N. Dec. at 583. The BIA emphasized that it has never adopted an inflexible test for determining when § 212(c) relief should be granted. Instead,

The equities that an applicant for section 212(c) relief must bring forward to establish that favorable discretionary action is warranted will depend in each case on the nature and circumstances of the ground of exclusion sought waived and on the presence of any additional adverse matters. As the negative factors grow more serious it becomes incumbent upon the applicant to introduce additional offsetting favorable evidence, which in some cases may have to involve unusual or outstanding equities. Such a showing at times may be required solely by virtue of the circumstances and nature of the exclusion ground sought waived.

Marin, 16 I. & N. Dec. at 585.

In a footnote the BIA added that the disfavor attending serious drug offenses would generally require a showing of "unusual and outstanding equities" to offset such crimes. Marin, 16 I. & N. Dec. at 586 n.4. But neither the footnote nor the body of the opinion said that a weaker showing would be sufficient to overcome otherwise heinous crimes that did not involve drugs. See Cordoba-Chaves v. INS, 946 F.2d 1244 (7th Cir. 1991) (affirming, without discussion of instant issue, BIA's denial of discretionary waiver because "outstanding equities" shown in 1986 hearing were outweighed by alien's conviction for murder, aggravated battery and a lesser drug-related crime).

In Matter of Buscemi, 19 I. & N. Dec. 628, 633 (B.I.A. 1988), a discretionary waiver case involving serious drug-related crimes, the BIA commented, "The necessity of demonstrating unusual or outstanding equities is not exclusively triggered by serious crimes involving controlled substances....[A]s we indicated in Marin, one must examine the gravity of the offense." We do not read Buscemi as representing a shift in the BIA's standards, but a predictable clarification. Petitioner here cannot realistically claim to have been misled by the Marin decision, which obviously warned of the need for greater equities where, as here, there were especially egregious disqualifying factors.

(2) BIA's Standard of Review

Petitioner argues that the BIA exceeded its authority by conducting a de novo review of the evidence. He claims the BIA erroneously refused to accept the IJ's factual findings as conclusive.

First, we do not agree with petitioner's characterization of the BIA's procedure. The BIA did not find new facts nor reweigh those which the IJ had already found. Instead, the BIA held that the IJ erred by applying an inappropriate balancing standard. The IJ had not assessed the facts to determine if petitioner had shown "outstanding and unusual equities", as required by Marin. Rather the IJ had reasoned that since petitioner had family in the United States, a clean record in prison, and was truly contrite, he should be given "the opportunity to remain." The BIA did not abuse its discretion in holding the IJ's decision to be an error under Marin.

Second, the BIA searched the record for additional facts that might demonstrate the "unusual and outstanding" equities required by Marin, and found none. This second step in the BIA's review arguably might be characterized as de novo. But it was not error. The BIA has discretion to review the IJ's decision de novo, and the "full power to determine all factual issues before it." Hazzard v. INS, 951 F.2d at 440 n.4 (quoting 1 C. Gordon & S. Mailman, Immigration Law and Procedure, Sect. 3.05[b] at p.3-57); Cordoba-Chaves, 946 F.2d at 1249 (rejecting petitioner's argument that BIA was required to defer to IJ's factual and credibility findings). Nor did the BIA abuse its discretion by not remanding to the IJ. Petitioner offers no reason for compelling a remand beyond his belief that the IJ is a better fact-finder.

Petitioner's main argument appears to be that since the IJ concluded that petitioner was entitled to a waiver, the BIA's contrary decision must be wrong. On review, we do not choose between the two interpretations. If the BIA's decision is supported by substantial evidence, meaning "such relevant evidence as a reasonable mind might accept to support [such] a conclusion," we must defer to the BIA and affirm. Blackwood, 803 F.2d at 1168; Martinez v. INS, No. 92-1008, 1992 U.S. App. LEXIS 17123, at (1st Cir. July 28, 1992).

There was certainly substantial evidence to support the BIA's decision. Petitioner conceded commission of a brutal crime less than three years after entering this country. He bore the burden of showing that despite this fact there were countervailing equities entitling him to discretionary relief from deportation. Hazzard, 951 F.2d at 438.

The BIA accepted the IJ's assessment of petitioner as "candid and worthy of belief," possessed of a genuine desire "to walk the straight and narrow" and having seen "the error of his ways." But the BIA found the record devoid of any other evidence probative of the factors listed in Marin and other cases, which might demonstrate "unusual and outstanding equities."

The record showed that most of petitioner's stay in the United States was spent behind bars. He had no employment history, no community service, and, the BIA concluded, had shown no evidence of rehabilitation. Although respondent had a number of family members in this country, the BIA saw nothing in the record "to suggest that [he] maintains a particularly close, supportive relationship with them."

Petitioner argues that the BIA erred in concluding that there was "no" evidence on each of these subjects. For example, he points to proof that he was assigned work in prison as evidence of an employment history. He says his rehabilitation was demonstrated by such evidence as the absence of a prison disciplinary record and his parole after less than nine years' incarceration. And he argues that he proved close family ties by his expressed desire not to return to Portugal because his family was here.

These abstruse interpretations of the evidence aside, our reading of the record leads us to conclude that the BIA did not overlook any cogent evidence that might have proved "outstanding equities" in petitioner's favor. The BIA is not required to address specifically each item of evidence presented, so long as it has given reasoned consideration to the record as a whole. Martinez, 1992 U.S. App. LEXIS at 17123. Cf. Vergara-Molina v. INS, 956 F.2d 682, 685 (7th Cir. 1992) (where evidence showed BIA adequately considered rehabilitation factor, BIA need not discuss specifically each fact which petitioner presented); Villaneueva-Franco v. INS, 802 F.2d 327, 329-30 (9th Cir. 1986) (BIA's recognition generally of favorable facts without referring specifically to each fact was not an abuse of discretion).

In conclusion, there is no showing here that the BIA abused its discretion in denying petitioner a waiver of deportation under § 212(c) of the Act.

The decision of the BIA is affirmed.