Jose Ismael Martinez-martinez, Petitioner, v. Immigration and Naturalization Service, Respondent, 56 F.3d 72 (9th Cir. 1995)

Petition to Review a Decision of the Immigration and Naturalization Service, I&NS No. A26 642 102.

INS

PETITION DENIED.

Before: HALL and LEAVY, Circuit Judges, and LEVI, District Judge^** 

MEMORANDUM^*** 

Jose Ismael Martinez-Martinez petitions for review of the Board of Immigration Appeals' ("BIA") dismissal of his appeal from an immigration judge's ("IJ") denial of his application for registry under section 249 of the Immigration and Nationality Act, 8 U.S.C. § 1259. We have jurisdiction under 8 U.S.C. § 1105a, and we deny Martinez-Martinez's timely petition.

Martinez-Martinez is a citizen of Mexico. (A.R. at 20.) In 1986, the Immigration and Naturalization Service issued an order to show cause why he should not be deported. (Id.) Following a hearing in January 1987, the IJ found Martinez-Martinez deportable and granted him voluntary departure. (Id. at 20-21.) In September 1988, the IJ permitted Martinez-Martinez to re-open the proceedings to apply for registry under 8 U.S.C. § 1259. (Id. at 21.) Following a further hearing, the IJ denied petitioner's application for registry and found him deportable. (Id. at 26.) The BIA affirmed in an opinion that sets forth its reasons for concurring with the conclusion of the IJ. (Id. at 3-4.)

The Attorney General may, in her discretion, make a record of lawful admission for an alien who entered the United States prior to January 1, 1972 and who has continuous residence in the United States since entry, good moral character, and is eligible for citizenship. 8 U.S.C. § 1259. This procedure is known as registry. There is no question in this case that Martinez-Martinez meets the basic prerequisites for registry. Rather, the issue is whether the BIA properly exercised its discretion in denying registry relief. We review the BIA's discretionary denial of relief from deportation for abuse of discretion. Rashtabadi v. INS, 23 F.3d 1562, 1566 (9th Cir. 1994) (citing Foti v. INS, 375 U.S. 217, 228 (1963)). Under this standard, the BIA's decision "will be upheld unless it is arbitrary, irrational, or contrary to law." Padilla-Agustin v. INS, 21 F.3d 970, 973 (9th Cir. 1994).

Petitioner argues that the IJ abused his discretion by applying the wrong legal standard. Martinez-Martinez contends that the IJ mistakenly applied the higher standard for suspension of deportation under 8 U.S.C. § 1254(a) by requiring him to make a showing of "outstanding" equities in his favor. (Pet'r's Br. at 7.) However, we would only review the IJ's decision if the BIA confined its review to determining whether the IJ abused his discretion. Rarogal v. INS, 42 F.3d 570, 571 (9th Cir. 1994). Where the BIA has reviewed the IJ's decision de novo and has independently exercised its discretion, we review only the BIA's decision. Id.

In this case, although the BIA did not expressly state the standard of review that it applied to the IJ's decision, it is apparent that its review was de novo. The BIA independently reviewed the facts of the case and considered both the positive and the negative equities in petitioner's application for registry relief. (A.R. at 4.) Upon concluding this analysis, the BIA found that the IJ correctly addressed the relevant issues. (A.R. at 3-4.) Nothing in the BIA opinion suggests that any deference was given to the IJ. In these circumstances, we review only the BIA's decision.¹ 

Martinez-Martinez does not assert that the BIA applied the wrong legal standard. It did not require petitioner to show extreme hardship or outstanding equities. The BIA explained that petitioner repeatedly violated the immigration laws of this country, has numerous drunk driving offenses, and apparently failed to pay taxes almost half the time he has been in the United States. (A.R. at 4.) The BIA also observed that Martinez-Martinez has some positive equities, including a record of diligent work. (Id.) Overall, however, the BIA found that petitioner's positive equities "in no way counterbalance the many negative factors present in the case." (Id.) The BIA's reasoning reflects a consideration of appropriate factors. Its weighing of the equities was not an abuse of discretion.

Because the BIA appropriately exercised its discretion, we affirm its order. Martinez-Martinez's petition for registry relief is

DENIED.