Reynaldo Hurtado Flores, Petitioner, v. Immigration and Naturalization Service, Respondent, 134 F.3d 377 (9th Cir. 1998)

MEMORANDUM^* 

Petitioner Reynaldo Hurtado-Flores ("Hurtado-Flores") seeks review from the denial of his application for suspension of deportation. Hurtado-Flores applied for a suspension of deportation pursuant to 8 U.S.C. § 1254. His application was denied by the immigration judge for failure to show good moral character because Hurtado-Flores falsified his tax returns. The Board of Immigration Appeals ("BIA") dismissed the appeal. We nave jurisdiction pursuant to 8 U.S.C. § 1105a.¹  We deny the petition for review.

We review a denial of suspension of deportation for abuse of discretion. Ins v. Jong Ha Wang, 450 U.S. 139 (1981). We review the decision of the BIA unless the BIA adopts the findings of the immigration judge, Mawli v. INS, 671 F.2d 342, 344-45 (9th Cir. 1982); or the BIA's findings conflict with those of the immigration judge, Hernandez-Robledo v. INS, 777 F.2d 536, 539 (9th Cir. 1985). In this case the BIA agrees with the findings of the immigration judge and presents its own findings. Therefore, we review the BIA decision.

A showing of good moral character is one of three requirements for a suspension of deportation under 8 U.S.C. § 1254(a) (1) (1996).²  A finding that the applicant lacks good moral character may be based on the statutory provisions in 8 U.S.C. § 1101(f) (1996) (listing seven per se categories) or the exercise of discretion. Torres-Guzman v. INS, 804 F.2d 531 (9th Cir. 1986), In this case, Hurtado-Flores's conduct does not fall into any of the seven per se categories.³  Thus, we must determine whether the BIA's decision to deny Hurtado-Flores's application for suspension of deportation for falsification of his tax returns constitutes an abuse of discretion.

First, Hurtado-Flores contends that there was insufficient evidence to warrant a finding that he intended to give false information on his tax returns. He argues that he received assistance in completing his tax returns and was not aware that he was doing anything wrong. Additionally, Hurtado-Flores argues that the IRS presented no evidence that his actions constitute a tax code violation. We must determine whether there is reasonable, substantial, and probative evidence on the record as a whole to support the BIA's findings. Hernandez-Robledo, 777 F.2d at 539; 8 U.S.C. § 1105a(a) (4).

On his tax returns, Hurtado-Flores listed two different boys as his "son" and stated that each had resided with him for the entire year in question. During his deportation hearing, Hurtado-Flores admitted that he has no children. He admitted that he used the name and social security number of a nephew who had not resided with him as an exemption on his tax return. Furthermore, the BIA did cite the section of the tax code Hurtado-Flores violated and found Hurtado-Flores ultimately responsible despite his having received assistance filing his returns. Based on the record, the BIA's finding that Hurtado-Flores falsified his tax return is not clearly erroneous.

Second, Hurtado-Flores argues that the BIA abused its discretion in rejecting his application for suspension of deportation for lack of good moral character. He argues that the BIA is required to consider all countervailing positive factors in situations where a finding of good moral character is not statutorily barred.

We have held that failing to consider all relevant factors, including favorable ones, constitutes an abuse of discretion in this context. Torres-Guzman, 804 F.2d 531, 533. Hurtado-Flores, however, fails to,present any favorable factors that were not considered by the BIA. The record shows that the BIA considered Hurtado-Flores's steady employment, regular church attendance, and financial independence. The BIA, however, found that Hurtado-Flores violated the tax code by claiming a nephew who did not reside with him as his dependant son on his tax returns. Under these circumstances, Hurtado-Flores has failed to show that the denial of his application was an abuse of discretion.

The petition is DENIED.⁴